                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-27-2007

USA v. Kemp
Precedential or Non-Precedential: Precedential

Docket No. 05-3477




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"USA v. Kemp" (2007). 2007 Decisions. Paper 488.
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                                PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 05-3477


      UNITED STATES OF AMERICA

                      v.

               COREY KEMP,

                                      Appellant


On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
      (D.C. Criminal No. 04-cr-00370-2)
   District Judge: Hon. Michael M. Baylson


                 No. 05-3561


      UNITED STATES OF AMERICA

                      v.

         JANICE RENEE KNIGHT,

                                      Appellant


On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
      (D.C. Criminal No. 04-cr-00370-6)
   District Judge: Hon. Michael M. Baylson
                 No. 05-4623


      UNITED STATES OF AMERICA

                      v.

            LAVAN HAWKINS,

                                      Appellant


On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
      (D.C. Criminal No. 04-cr-00370-5)
   District Judge: Hon. Michael M. Baylson


                 No. 05-4717


      UNITED STATES OF AMERICA

                      v.

          STEPHEN M. UMBRELL,

                                      Appellant


On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
      (D.C. Criminal No. 04-cr-00370-4)
   District Judge: Hon. Michael M. Baylson




                      2
                          No. 05-4846


               UNITED STATES OF AMERICA

                                v.

                      GLENN K. HOLCK,

                                                 Appellant


        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
              (D.C. Criminal No. 04-cr-00370-3)
           District Judge: Hon. Michael M. Baylson


                      Argued June 5, 2007

               BEFORE: SMITH and COWEN,
                 and SILER*, Circuit Judges

                    (Filed August 27, 2007)




*Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge, U.S. Court of Appeals for the Sixth Circuit, sitting by
designation.


                                3
Lloyd G. Parry, Esq.
Davis, Parry & Tyler
1525 Locust Street, 14th Floor
Philadelphia, PA 19102

William R. Spade, Jr., Esq.
1525 Locust Street, Suite 1400
Philadelphia, PA 19102

Counsel for Appellant Corey Kemp

Nino V. Tinari, Esq.
123 South Broad Street, Suite 1970
Philadelphia, PA 19109

Counsel for Appellant Janice Renee Knight

Timothy K. Lewis, Esq. (Argued)
Schnader, Harrison, Segal & Lewis
2001 Pennsylvania Avenue, N.W., Suite 300
Washington, DC 20006

Elizabeth K. Ainslie, Esq.
Nancy Winkelman, Esq.
Bruce P. Merenstein, Esq.
Schnader Harrison, Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103

Nathaniel E. Jones, Esq.
James H. Fields, Esq.
Jones & Associates
111 South Calvert Street
Legg Mason Tower, Suite 2700
Baltimore, MD 21202

Counsel for Appellant Lavan Hawkins




                                 4
Lawrence S. Lustberg, Esq. (Argued)
Kevin McNulty, Esq.
Gibbons, P.C.
One Gateway Center
Newark, NJ 07102-5310

Counsel for Appellant Stephen M. Umbrell

Kevin H. Marino, Esq. (Argued)
John D. Tortorella, Esq.
Marino Tortorella
437 Southern Boulevard
Chatham, NJ 07928

Counsel for Appellant Glenn K. Holck

Robert A. Zauzmer, Esq. (Argued)
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

Counsel for Appellee United States of America


                           OPINION


COWEN, Circuit Judge.

       After a wide-ranging investigation into corruption in
Philadelphia city government, the federal government obtained
convictions against Corey Kemp, the former treasurer of
Philadelphia; Glenn G. Holck and Stephen M. Umbrell, former
executives of Commerce Bank; La-Van Hawkins, a businessman
from Detroit; and Janice Renee Knight, the nominal owner of a
printing company named RPC Unlimited. The appellants
challenge their judgments of conviction on a variety of fronts.
For the reasons discussed below, we will affirm.

                               I.


                               5
       A.       The Charges

        On November 2, 2004,1 a grand jury in the Eastern
District of Pennsylvania returned a 63-count indictment against
Kemp, Holck, Umbrell, Hawkins, Knight, Ronald White, a
Philadelphia-based lawyer with close ties to city government,2
and four others whose cases proceeded separately. The
centerpiece of the indictment charged Kemp, White, Holck,
Umbrell, Knight, and Hawkins with conspiracy to commit
honest services fraud in violation of 18 U.S.C. § 371. According
to the indictment, White acquired control over Kemp’s decision-
making by making corrupt payments and gifts to Kemp, and then
used that control to direct city contracts to companies that he
favored. The indictment alleged that Hawkins aided this
arrangement by funneling bribe money from White to Kemp,
and that Knight, White’s girlfriend, took advantage of White’s
control over Kemp by accepting a steady stream of city business
through RPC Unlimited. Moreover, the indictment charged
Holck and Umbrell with participating in the conspiracy by
extending, through Commerce Bank, otherwise-unavailable
loans to Kemp in exchange for preferential treatment from Kemp
on official matters.

        In addition to the conspiracy charge, the indictment also
charged the defendants with numerous counts of honest services
mail fraud, honest services wire fraud, extortion, and perjury. Of
these charges, four groups are relevant to this appeal. First,
Kemp was charged with two counts of honest services mail fraud
for his role in an asset-locator business that he created and
operated with his friend, Rhonda Anderson. Second, Holck and
Umbrell were charged with eight counts of honest services wire
fraud concerning their role in corrupting Kemp. Third, Hawkins
was charged with two counts of aiding and abetting wire fraud,
concerning his transfer of money to Kemp. Fourth, Hawkins


       1
        The defendants were initially indicted on June 29, 2004.
For simplicity, all references to the indictment refer to the
superseding indictment.
       2
           White passed away before trial.

                                  6
was charged with four counts of perjury stemming from false
statements that Hawkins allegedly made while testifying before a
grand jury investigating this case.3

       B.     The Government’s Evidence4

       Kemp, Hawkins, Knight, Holck, and Umbrell proceeded
together to trial. Opening statements began on February 22,
2005, and the government presented its case over the next six
weeks. Central to the government’s case were tape recordings of
scores of conversations between the defendants.




       3
          These are but a selection of the charges included in the
indictment. Overall, Kemp was charged with one count of
conspiracy, 20 counts of wire fraud, 12 counts of mail fraud, three
counts of making false statements to a bank, four counts of money
laundering, four counts of filing false tax returns, one count of
extortion, and one count of attempted extortion; Hawkins was
charged with one count of conspiracy, four counts of wire fraud,
and four counts of perjury; Knight was charged with one count of
conspiracy, three counts of wire fraud, and three counts of making
false statements to the FBI; and Holck and Umbrell were charged
with one count of conspiracy, eight counts of wire fraud and one
count of mail fraud. White was the subject of 38 counts.
       4
       We construe the evidence in the light most favorable to the
government, as the verdict winner. See, e.g., United States v.
Dobson, 419 F.3d 231, 234 (3d Cir. 2005).

                                7
              1.     Evidence Concerning Kemp

       The government overwhelmingly proved that White
showered Kemp with gifts5 and that Kemp permitted White to
wield an untoward influence in selecting which companies
would be selected for6 or excluded from7 bond teams.8 Kemp


       5
         White arranged for Kemp to receive tickets to the NBA
All-Star Game and concomitant festivities; two $5,000 checks from
Hawkins; a $10,350 deck; transportation and tickets to the Super
Bowl in San Diego as well as accommodation and meals; four
tickets to a USA basketball game; trips to New York and Detroit;
and numerous meals. Moreover, White promised to help Kemp
advance his post-treasurer career.
       6
          For instance, in an April 28, 2003 phone call, White and
Kemp discussed the composition of several bond teams. Kemp
noted that White had been selected as counsel for each deal, so the
two focused on underwriters. An excerpt of the telephone call
illustrates White’s massive authority:
        Kemp: And you wanted Loop on there.
        White: Ah . . .
        Kemp: On the UBS, First American and Loop.
        White: Yeah. . . . [A]lso I would like . . . Janney
        Montgomery Scott.
        Kemp: Okay.
        White: All right?
        Kemp: All right.
        White: If I gotta take Siebert off, well, if I, we gotta
        take somebody off I definitely want Janney
        Montgomery Scott on there. So we addin’ Loop,
        you say, and Janney Mont. . .
        Kemp: You . . . wanted UBS, First American, Loop,
        and you want Janney.
        White: Yeah.
        Kemp: Okay, all right.
(App. 11983-84.)
        A February 25, 2003 phone call found Kemp and White
gloating about their successes: after White instructed Kemp to offer
a spot to a particular individual, Kemp stated, “Not a problem at

                                 8
all. Yeah. So, . . . we got the whole rest of the team.” White
responded, “Right. We’re finally doing it the way they use to do
us, right? It’s terrible, ain’t it brother?” Kemp replied, “Oh no, it’s
life. Oh, it’s life man.” (App. at 11707.)
        Kemp and White’s mode of operation is clearly illustrated
in their conversation about Andre Allen, a principal of a
Philadelphia financial advisory firm, who was seeking business
from the city. Right off the bat, White asked Allen for a $25,000
contribution to the mayor’s reelection campaign, and Allen
promised to consider the request. Soon thereafter, Kemp and
White discussed this situation:
        White: [Allen] called me, today. . . He called me,
        you know, because I, I asked him . . . if he could
        raise twenty-five grand. . . . Called me you know,
        crying, talkin’ about he couldn’t do it. . . . Then he
        started askin’ me, well, man, if, you know, if you all
        deliv-, and I said, listen, man, how many times I got
        to tell you, don’t have that conversation with me.
        Kemp: Right.
        White: You know what I mean, don’t have no quid
        pro quo conversations with me, I don’t have those
        kinds of conversations. You know, I said listen, I
        ain’t got time to convince you, man, you know.
        Like, we sat down and we spent a lot of time with
        you, and we told you, you know, you was going to
        be part of the team. Now, you know, yous either,
        you down or you ain’t with it.
        Kemp: Right, right. . . . ‘Cause if they don’t, if they
        ain’t with it they ain’t going to get nothin’.
        White: That’s right.
        Kemp: You know, you, you just hate to say it, but
        that’s the way it is. . . . You know it’s not a hard
        decision. You know, because that stuff comes,
        comes back, over and over.
(App. 12973-74.)
       7
        For instance, in the February 25, 2003 phone call, Kemp
reported that he had been asked to include Pryor, McClendon, a
financial firm, and Schnader, Harrison, a law firm, on the Drexel

                                  9
and White’s relationship was accurately encapsulated by Kemp’s
statement, after informing White that White would be paid
$35,000 to $40,000 for a city contract, “[Y]ou got your boy
sitting in the Treasurer’s seat, man!” (App. at 12473.)

        The government also presented evidence concerning the
asset-locator business that Kemp operated with his friend
Anderson. Anderson testified that in November 2002, Kemp
told Anderson that the treasurer’s office had received a request
from a company for a list of bondholders whose bonds had
matured but who had not collected their money. Kemp told
Anderson that the two of them should create a business offering
the same service. Kemp and Anderson hoped to get paid by the
bondholders for facilitating their recovery; Kemp and Anderson
agreed that Kemp would receive 40% of the proceeds. Kemp
“said that he would have to be paid in cash and that no one could
really know about his interest in it because he was treasurer.”
(App. at 9006.) According to Anderson, Kemp would receive
his share for providing the list of bondholders and generating the
forms that had to be filed to permit the banks to pay on the
bonds. Anderson ultimately initiated this business, using a
company that she co-owned with another friend. She collected
fees of $3,700 and $1,000, and paid Kemp, in cash, a total of
$1,300 for his services.




University bond team. White strenuously objected to these firms,
and stated, “[Y]ou tell him Pryor McClendon is out, forever.”
White went on to demand that Schnader, Harrison also be
excluded, explaining that “they don’t do nothin’ for nobody.”
(App. at 11705.) While Schnader, Harrison earned more than other
law firms in fees from bond deals while Kemp’s predecessor was
treasurer, during Kemp’s tenure, they were not selected for a single
deal.
       8
         Philadelphia assembled a “bond team” to handle the
issuance of bonds. This team included, among other professionals,
a lead underwriter, other underwriting banks, separate counsel for
the issuer and bondholders, and a printer for the financial
documents.

                                10
       2.     Evidence Concerning Holck and Umbrell

        The government showed that Holck and Umbrell, as
executives of Commerce Bank, worked mightily to earn
contracts and increase cash deposits from Philadelphia.9 At the
same time that they were soliciting this business, Holck and
Umbrell extended five different loans to Kemp. The government
contrasted Commerce’s amenability to Kemp once he became
treasurer to the fact that just before Kemp took that position, in
September 2001, Commerce rejected Kemp’s application for a
$2,000 line of credit with a form letter. It was the government’s
position that Holck and Umbrell extended these loans to Kemp
for the purpose of influencing his decision-making, while Holck
and Umbrell claimed that the loans were made in the ordinary
course of business. The government’s evidence concerning
these loans may be summarized as follows:

       First, the government presented testimony demonstrating
that Kemp introduced Paul Schnapp, a member of his family, to
Umbrell, and requested a $10,000 loan for Schnapp. Schnapp
had filed for bankruptcy two years earlier, and his application for
a similar loan had recently been rejected by Wachovia.
Commerce required Schnapp’s wife, Teresita, a recent
immigrant to the United States with almost no credit history, to
co-sign the loan. Schnapp’s loan application indicated that his
income was $10,000 a month, but the only supporting
documentation demonstrated income in the past month of
$1,800. The branch manager wrote to a colleague that “this
comes from the top” and was an “easy one,” and Schnapp was
approved for an unsecured $10,000 loan days after applying.
(App. at 16548.)

      Second, Commerce provided Kemp with mortgages that
allowed him to purchase a $225,000 house with no money down.
On November 4, 2002, Umbrell reported to the chairman of
Commerce that Kemp had requested a mortgage and that
Umbrell and a Commerce mortgage representative would meet


       9
         White, who was on Commerce’s payroll as a consultant,
aided in these efforts.

                                11
with Kemp the following day. Umbrell did meet with Kemp;
however, instead of a mortgage representative, the third member
of the group was White. The next day, Umbrell approved
Kemp’s request to be pre-qualified for a $227,000 mortgage.
However, Commerce Bank’s policy was only to provide letters
of pre-qualification to those individuals with credit scores of at
least 680, and Kemp’s scores ranged from 456 to 526. The
government presented evidence that this was not an official
Commerce pre-qualification form, but was a singular letter
created by Umbrell to benefit Kemp.

       The initial mortgage was formally approved on November
18, 2002 – before Kemp had even completed an application.
Commerce submitted Kemp’s application to its underwriting
process, and the application was rejected by the program that
Commerce used to rate loans. The report indicated that Kemp’s
and his wife’s credit scores ranged from 440 to 528, that Kemp
had a past-due liability to Wachovia of over $13,000, and that
Kemp owed other creditors an additional $20,000. Thomas
Conte, who was the operations manager of Commerce’s
mortgage department at the time Kemp’s loan was processed,
reviewed the underwriting results and also rejected the
application. However, on December 3, 2002, Holck and
Umbrell reversed Conte’s decision and approved the loan.
While the loan was initially contingent upon Kemp’s repaying
the $33,000 that he owed to creditors, a week later, Holck and
Umbrell waived that condition. Conte testified that this process
deviated from Commerce Bank’s standard underwriting
procedures.

        On December 18, 2002, Commerce’s consumer loan
department began processing Kemp’s second mortgage loan, for
the additional 20% of the purchase price. Commerce’s usual
policy was to advance 100% financing only to individuals with a
credit score of at least 650 and no charge-offs in the past seven
years. Kemp clearly did not meet those requirements – his credit
score, as calculated by this underwriting program, was 433, and
his charge-off with Wachovia originated within the previous
year – and the underwriting program rejected the application.
Nevertheless, Umbrell authorized the loan on the basis of
Kemp’s “strong bank relationship,” his position as treasurer, and

                                12
his income. (App. at 16347-48.) Contrary to Umbrell’s claim
that Kemp had a strong relationship with Commerce, the
government presented evidence that Kemp’s account with
Commerce usually contained less that $1,000.

       Third, in March 2003, Commerce made a $21,300
automobile loan to Kemp. The applicable credit report showed
that Kemp’s credit score was 520, which was still below
Commerce’s standard requirement of 650, and that Kemp had a
prior bad debt to Wachovia (as described above) and an
additional prior bad debt to Summit Bank for a 1990 Pontiac
Grand Am. Again, the underwriting program did not approve
the loan, and again, Umbrell overrode the declination, based on
Kemp’s “strong bank relationship” and “positive previous
experience.” (App. at 16361.)

       Fourth, in June 2003, Commerce approved Kemp’s
request for a $480,000 construction loan for his church, which
had been damaged by lightning. On June 23, 2003, Miriam
D’Elia, an attorney at White’s law office, who was handling the
closing for Commerce, informed Kemp that the church would
not receive any money until it provided all of its specifications
and plans. Kemp then called Umbrell, and Umbrell agreed to
disburse money to the church for previous expenses as long as
Kemp provided invoices – even without providing proof that the
church had paid those invoices. Kemp and the church’s pastor
then created false invoices so that the church could procure
money for invented expenses.

       The day after Kemp spoke to Umbrell, D’Elia informed
Kemp that Commerce’s closing agent, Valerie Coates, was “very
concerned” that the church understood it would not receive any
money at the closing. (App. at 12449.) Kemp told D’Elia that
Umbrell had approved the church’s obtaining money for costs,
and D’Elia responded that Coates was “real upset about that.”
(App. at 12450.) Coates then joined the conversation, and stated
to Kemp, “[Y]ou’re not expecting any funding [at closing],
correct.” (App. at 12452.) Kemp responded that Umbrell had
approved the church’s being reimbursed for previous expenses,
and Coates said, “Okay, he’s gonna be a bad boy then.” (App. at
12453.) Coates testified that this statement did not mean that

                               13
Umbrell had acted inappropriately, only that this decision would
complicate her work.

       Kemp and Umbrell spoke again later that day. Kemp
asked Umbrell if he would waive any of the closing fees, and
Umbrell agreed to waive the $3,500 appraisal fee. The two then
discussed the renewal of some of Philadelphia’s certificates of
deposit with Commerce. Kemp told Umbrell that Umbrell did
not have to work with any of Kemp’s subordinates on the deal,
but should talk to Kemp himself, because “I want them to know
that you are my f__king guy. . . . So you get special treatment.”
(App. at 12459.)

       Coates then sent an email to Holck, asking him to
approve the advance of 80% of the church’s as-is value of
$150,000; immediately thereafter, Holck approved. In the file
notes for the loan, Coates wrote, “I did what I was told to do.”
(App. at 16409.) She testified that this did not denote that she
was unhappy with what had occurred, only that her actions had
been authorized.

        Fifth and finally, on July 1, 2003, Umbrell called Kemp,
and the two briefly discussed Philadelphia’s deposits with
Commerce, and then Kemp stated, “[M]y brother-in-law’s
looking to do a small personal loan. . . . What’s the maximum
he can do unsecured?” (App. at 12549-50.) Umbrell responded,
“[H]ow much does he need, tell me what he needs, ‘cause then
I’ll know what pocket to put it in.” (App. at 12550.) Kemp
informed Umbrell that his brother-in-law had “shaky credit,”
Umbrell asked if it was “bankruptcy bad,” and Kemp responded
in the negative. (App. at 12550.) Umbrell responded, “What do
you want to go back and promise him? . . . Is [$6,000] enough
for you to go back with? . . . I’m trying to make you look good .
. . how much do you want to . . . if you want to tell him seventy
five hundred, tell him seventy five hundred.” (App. at 12551.)
The two ultimately agreed on $7,500, which, as the telephone
call made clear, Umbrell approved without so much as seeing an
application or speaking to the borrower. The government
presented evidence demonstrating that Holck, Umbrell, and
Kemp all understood that in return for these loans, Commerce
Bank would receive preferential treatment. Most significant

                               14
were the circumstances surrounding the city’s selection of
Commerce to offer a $30 million line of credit in support of the
Neighborhood Transformation Initiative (NTI). In order to
select the bank that would offer this line of credit, the city
instituted a bidding process, in which interested banks would
submit competing financial plans to the city. Soon after
Commerce’s submission, Kemp told White to tell Commerce, in
the future, not to submit its bid first, because then Kemp could
tell White about the other bids so that Commerce could then bid
accordingly. Later that day, White called Umbrell, and said,
“Listen, uh, somebody told me to tell you that when you guys do
these things, don’t ever send your stuff in first.” (App. at
12192.) Umbrell responded, “[Y]ou know I love you, right? . . .
I know who told you that, . . . and I understand why.” (App. at
12192.) White then called Holck and gave him the same advice.
Holck replied, “I know, I know. Corey said to him not to.”
(App. at 12198.)

        Initially, the two best bids came from Commerce and
KBC Bank. KBC offered the lowest interest rate, but Commerce
offered to defer interest for an initial period. Kemp told White
that he planned to call Commerce and convince them to lower
their interest rate, which he did, in a subsequent conversation
with Holck. Thus, Commerce was given the opportunity to
submit a second bid. Around this time Kemp met with Donald
DiLoreto, a representative of Wachovia Bank, and they
discussed the bidding. After their conversation, DiLoreto
emailed Kemp asking if he could submit an improved bid.
Kemp never responded.

        After Commerce submitted its improved offer, Kemp
asked his boss, Janice Davis, if they could award the line of
credit to Commerce. Davis told Kemp that if one bank was
permitted to rebid, every bank must receive the same
opportunity. Neither Davis nor the representatives of the five
banks who submitted bids expected that any bank would have a
chance to enter a second bid. Nevertheless, on Davis’s orders,
Kemp opened another round of bidding.

     After the second round of bidding began, Holck and
Umbrell discussed the situation in a telephone call with White.

                               15
Holck appeared confused by the process, stating “you know we
made . . . the revised proposal to Corey? . . . And something’s
not smelling right.” (App. at 12256.) White assured Holck and
Umbrell that they did not have to worry. This was good advice:
Commerce’s new bid, which conformed to Kemp’s demand, was
the best one and Commerce won the line of credit. The
government presented evidence demonstrating that none of the
other banks received any inside information about what to bid.
The corruptness of the process was starkly described in a
telephone call between Kemp and Reverend Frank McCracken,
where Kemp stated:

      Listen [Commerce Bank] better take care of me man,
      I’m hooking ‘em up. Did my thing. ‘Cause, I got a
      conference call at four, three thirty and that’s on ah
      a line of credit. I got a thirty million dollar line of
      credit from Commerce Bank for the city. . . . Ah, it
      was a bid though, it was a bid. And they, um, they
      bid, they were they were like in second place right,
      so I called Steve and I said Steve, look, this is what
      you all got to beat. See, you didn’t hear it from me,
      but then they came back.

(App. at 12557-58.)

             3.       Evidence Concerning Hawkins

       The government’s evidence against Hawkins primarily
concerned three events: Hawkins’s providing Kemp with a check
for $5,000 dated March 10, 2002; Hawkins’s providing Kemp
with a check for $5,000 dated September 25, 2002; and a
meeting that Hawkins attended with Kemp, White, and
businessman Aslam Khan. The government focused on these
events in an attempt to prove both that Hawkins had joined the
conspiracy and that he had committed perjury when he
subsequently testified about these events before a grand jury.

       The first check was dated March 10, 2002, was written on
the account of one of Hawkins’s companies, was made out to
Kemp, and was signed by Hawkins. The government presented
evidence that White, but not Kemp, was present in Detroit on

                                16
March 10, that Kemp had been married 20 months prior to that
time, and that Kemp successfully cashed the check.

       When Hawkins testified before a grand jury about
circumstances surrounding this $5,000 check, however, he
claimed that White and Kemp were in Detroit because White
was throwing a bachelor party for Kemp. According to
Hawkins, Kemp and White went to Hawkins’s office, and White
asked Hawkins to write a $5,000 check for Kemp as a wedding
present. Hawkins stated that the check was never cashed.

       The second check was dated September 25, 2002, and
was written on Hawkins’s personal account. Hawkins filled out
the entire check except for the payee information. The
government showed that on September 25, Kemp, but not White,
was present in Detroit. This check bounced twice, and was
ultimately replaced by a wire transfer sent from Hawkins’s
account to Kemp’s account. The government showed that White
had written a check to Hawkins for $5,000 dated September 23,
2002.

        During his grand jury testimony, Hawkins testified that
on September 25, 2002, he and White were together in Detroit.
He explained that he gave the check to White to give to an
association of African-American newspapers, who had been
helping him in ongoing litigation against Burger King. Hawkins
stated that the $5,000 was supposed to be part of a $15,000
donation that he had promised to the association. When asked
why White had so recently written Hawkins a check for $5,000,
Hawkins answered that the check could either have been to
reimburse him for the first check he wrote to Kemp or to repay
part of the $40,000 that Hawkins had loaned to White. Hawkins
testified that the loan had been made from cash that he kept in
his drawer.
        The third salient event concerned a business meeting
between Hawkins, Khan, Kemp, and White. As background, the
government showed that in 2002, Hawkins joined a venture that
was seeking to purchase AFCE, which owned and operated
restaurants such as Popeye’s, Church’s, and Cinnabon. The cost
of this venture was estimated to be between $600 million and $1
billion. To raise this capital, Hawkins sought investments from

                              17
pension funds, including Philadelphia’s fund. To that end, on
January 22, 2003, Hawkins and other members of his group met
in White’s office with White, Kemp, and Tony Johnson,
Philadelphia’s chief investment officer, and attempted to
convince Philadelphia officials to invest. Two days after that
meeting, Hawkins rented a private jet to transport Kemp and
White to the Super Bowl, at a cost of approximately $58,000.

       In the spring of 2003, the AFCE deal stalled, and
Hawkins redirected his focus to acquiring almost 100 Church’s
Fried Chicken franchises from Aslam Khan. On April 21, 2003,
Hawkins discussed this deal with White. Hawkins explained
that he needed to raise some money, and hoped to acquire an
investment from Philadelphia’s pension fund, which was
controlled by Anthony Johnson. In a May 2, 2003 phone call,
Hawkins told White that he was going to “need you to have
Tony [Johnson] to come to New York.” (App. at 12011.) White
responded that if he could not get Johnson, he would bring
Kemp; Hawkins was amenable to that alternative arrangement.

       On May 6, 2003, Hawkins called White and reminded
him of the meeting “that I needed you to have Corey at.” (App.
at 12033.) Hawkins explained that he just needed Kemp “to
keep this guy in the hole,” so that he would think that Hawkins
was “gettin’ 20 million.” (App. at 12034.)

        On May 8, 2003, Hawkins, Khan, White, and Kemp met
in New York. Kemp, who apparently believed that the purpose
of the meeting was to discuss the possibility of Church’s
expanding into Philadelphia, said that he was “speaking on
behalf of the administration,” and that “we will do whatever we
can that’s in our power in the City’s Administration to help this
along.” (App. at 12057-58.) Hawkins then prompted Kemp that
first, Hawkins needed to raise $40 million to purchase the
existing franchises. Kemp replied that he liked what he had
heard and promised to take the proposal back to the
administration. Kemp’s boss, Davis, testified that Kemp did not
have the authority to talk about the city’s pension funds and that
she would have fired him if she knew about this meeting.

       Hawkins also testified before the grand jury about this

                                18
meeting. He explained that the meeting was held because Khan
was interested in bringing Church’s Chicken into Philadelphia,
and he believed that White would be useful in accomplishing
that goal. He testified that he did not know why Kemp was
present, did not know in advance that Kemp would be there, and
had only asked White to bring someone to the meeting who was
familiar with the lay of the city and could describe potential
franchise locations to Khan. Hawkins explained that Kemp had
been present at the previous meeting in Philadelphia concerning
Hawkins’s attempted purchase of AFCE, and had, after
completing a market survey, reported on the opportunities that
were available for fast-food restaurants in Philadelphia.

              4.     Evidence Concerning Knight

       Janice Knight, White’s girlfriend, was the nominal owner
of RPC Enterprises, a printing company. The government
presented evidence that White worked tirelessly to ensure that
RPC was chosen as the printer for bond deals, and acted as the
de facto president of the company. Moreover, the government
adduced testimony that RPC lacked the equipment to perform
printing jobs itself, and instead, farmed the jobs out to a separate
company in New Jersey. Instead of negotiating fees with RPC,
Kemp simply informed RPC what the city’s budget was, and
paid RPC the maximum allotted. Thus, during the time that
Kemp was treasurer, RPC charged the city for $308,000 of work,
despite the fact that the New Jersey company had charged RPC
only $89,000.

       C.     Allegations of Juror Misconduct and the Discharge
              of Juror 11

       On April 13, 2005, the case was presented to the jury. On
April 27, 2005, the District Court discharged a juror, concluding
that she was biased against the government.

       The District Court had received its first indication that
something was amiss with the jury on April 18, 2005. That
afternoon, the court received two notes from jurors. The first
note stated:


                                19
              Your honor, the following note was handed to
      me in confidence and asked that you see it. I have
      read it and can confirm the statements were made.
              The person mentioned is making the rest of
      the group retry the case in the jury room. We are at
      a stalemate in the deliberation process. Evidence is
      being produced at the juror’s request and when it is
      produced, it is being disregarded. I feel that several
      jurors are removing themselves from the deliberation
      process because they feel this effort is futile. We are
      slowly losing jurors as the days go by, not for lack of
      interest or commitment to their civic duty but for the
      fact that nothing they can do or say will matter.

(App. at 10680.) The note also requested simple definitions of
the terms “intent,” “reasonable doubt,” and conspiracy.”

      The second note stated:

              Dear Foreperson: I have concerns regarding
      our deliberations. I feel I must keep an open mind,
      evaluate the evidence and make an effort to remain
      neutral. When the following comments are made by
      a fellow juror, I have concerns about that person’s
      motivation and honesty.
      1. “The government lies. They always lie.”
      2. “English is his second language – he didn’t
      understand what he was saying.”
      3. “How would you be!               She was having
      chemotherapy!”
      4. “I’ve interviewed many people and I know when
      they are on drugs.”
              I have tried to pass RPC book from RW’s
      office to the person, they refuse to look at what I was
      referring to, sat back in chair, closed eyes and
      folding their arms across their chest.
              I also resent the statement you are all
      benefitting from Ron White – two months of my
      civic duty should be ended with conversations with
      fellow jurors that have open minds. Perhaps I am
      trying to be too open minded. Any suggestions?

                                20
(App. at 10691-92.)

       In response to these notes, the judge called the jury into
the courtroom. Then, before re-instructing the jurors on intent,
reasonable doubt, and conspiracy, he stated:

               You have been terrific citizens. You have
       given up your daily lives to come in here and
       perform your civic duty. That is very, very
       important. That is appreciated by everyone. When
       you became jurors, you took an oath and your oath
       was to follow the law and part of that oath is to
       deliberate, and you must, as part of that oath,
       deliberate with each other and discuss the evidence
       and discuss the law and try to reach a verdict.
               Now, in trying to reach a verdict, you should
       not give up any beliefs which you have that you
       believe are true and sincere and that you hold to be
       warranted as a result of sitting as jurors and listening
       to this case for the last eight weeks.
               At the same time though, it is your duty and
       obligation as jurors to listen to what the other jurors
       say and to consider their arguments, to consider what
       they recall about the evidence, to consider what they
       recall about the law, to consider their evaluation of
       the witnesses and you should listen to each other and
       they should listen to you. So it’s important that, in
       the deliberative process, that all of you engage in this
       process of deliberating but if you have a sincere
       belief that the others are wrong and you are right,
       you are entitled to hold on to that and maintain that
       but you still have the duty to deliberate and discuss
       with each other what you believe the evidence is and
       why you believe it. That is part of the duty of each
       juror to deliberate and if you still, after doing that,
       you still have your own sincere belief and you
       believe you are right, you are entitled to maintain it
       but please remember, the duty to deliberate is part of
       your oath as being jurors.

(App. at 10699-700.)

                                 21
       The following day, the judge received two more notes.
The first note stated:

      I am finding it very difficult to deliberate with a
      juror who will not acknowledge any of the evidence.
      The juror has made comments when presented with
      the evidence, “show it to someone who cares.” The
      juror has continually referred to notes and used them
      as the evidence, also crosses arms over chest, leans
      back into chair and closes eyes and will not look
      over the evidence. Has made comments about
      “government lying.” “FBI is biased.” And “one
      defendant has been on chemotherapy” and 11 of us
      are benefitting from Ron White, (i.e. the payment we
      are receiving from jury duty), using analogies that
      does not pertain to anything.

(App. at 10739.)

      The second note stated:

      I’m concerned with one of my fellow jurors’
      comments during deliberations. I know every juror
      has their right to state feelings and opinions. Some
      of the remarks that I’ve hear from one individual
      makes me feel as though there is more bias than
      normal deliberations, comments such as,
      1. Prosecutors and FBI agents are liars.
      2. Using sympathy and feelings as factors in
      deliberations.
      3. Saying all the jurors are receiving benefits,
      courtesy of Ron White.
      I don’t know if I should be doing this but if I didn’t,
      I don’t think justice was served.

(App. at 10739-40.)

       After receiving this note, the court heard argument from
all counsel, and resolved to question each juror individually.
The court asked three questions of each juror, in camera: (1)
“Are you personally experiencing any problems with how the

                                22
deliberations are proceeding without telling us anything about
the votes as to guilt or innocence? If yes, describe the problem.”
(2) “Are all the jurors discussing the evidence or lack of
evidence?” (3) “Are all the jurors following the court’s
instructions on the law?” (App. at 10758.) The jurors’
responses may be summarized as follows:

       Juror 1: There was a problem at one point, but at the
       moment all jurors were acting appropriately.
       Juror 2: Juror 11 was very prejudiced against
       individuals based on their occupation.
       Juror 3: While deliberations were stressful, all jurors
       were acting appropriately.
       Juror 4: All jurors were properly discussing the
       evidence or lack of evidence, but sometimes certain
       jurors refused to look at evidence that other jurors
       found pertinent.
       Juror 5: All jurors were acting appropriately.
       Juror 6: All jurors were acting appropriately.
       Juror 7: All jurors were acting appropriately.
       Juror 8: Juror 11 was refusing to consider evidence.
       Juror 9: Juror 11 sometimes refused to look at
       evidence presented by other jurors, and was
       reasoning illogically. However, the jurors had made
       a break that day and it seemed that the deliberations
       were progressing.
       Juror 10: All jurors were acting appropriately.
       Juror 11: The jurors were making progress.
       Juror 12: All jurors were considering the evidence,
       but one juror said that the prosecutors were lying and
       that all jurors were receiving benefits from Ron
       White.

       The District Court decided, on the basis of these
responses, that no further instructions were necessary. The next
day the judge received a note stating “the hearing in your
chambers has helped facilitate the deliberations.” (App. at
10791.)

       Despite these glad tidings, on April 25, the jurors passed a
note to the judge stating:

                                 23
       Your Honor, deliberations have stopped! One of the
       jurors has changed their mind over the weekend on
       several counts that were decided last Thursday. The
       reasons stated by the juror are illogical. The
       following jurors do not believe further deliberations
       will be at all beneficial. It is unfair to the
       defendants, the lawyers, and the people of
       Philadelphia to continue deliberations in this manner.

(App. at 10862.7.) The note was signed by nine jurors.

        Based on this note, the court decided to question the
jurors individually a second time. The judge asked each juror:
(1) “Is there any juror or jurors who are refusing to deliberate?”
(2) “Is there any juror who is refusing to discuss the evidence or
lack of evidence?” (3) “Is there any juror who is refusing to
follow the Court’s instructions?”
(App. at 10862.20.)

       The jurors’ responses are as follows:

       Juror 1: Juror 11 did not seem to be deliberating, but
       was discussing the evidence and following the
       instructions.
       Juror 2: Juror 11 was not cooperating and was
       refusing to discuss the evidence.
       Juror 3: Three jurors were refusing to listen to the
       others, with Juror 11 particularly culpable.
       Juror 4: Juror 11 was refusing to deliberate and
       discuss the evidence.
       Juror 5: One juror was refusing to deliberate.
       Juror 6: All jurors were acting appropriately.
       Juror 7: Juror 11 was refusing to follow the court’s
       instructions.
       Juror 8: Juror 11 was refusing to deliberate and
       discuss the evidence.
       Juror 9: Juror 11 was refusing to discuss the
       evidence.
       Juror 10: All jurors were acting appropriately.
       Juror 11: One or two jurors seemed to feel that they
       were done talking about certain topics.

                                24
       Juror 12: Juror 11 was refusing to deliberate and
       discuss the evidence.

       Immediately after completing this voir dire, the judge
received a note stating that “the jury did not feel the right
questions were asked.” (App. at 10862.43.) The jurors
suggested the following questions:

       1. Why have the jurors stopped deliberating?
       2. Are jurors looking at the evidence logically and
       forming a reasonable opinion about each individual
       count?
       3. Have jurors entered into deliberations with
       preconceived notions or prejudices?
       4. Can you summarize the deliberations and how you
       feel they are progressing?
       5. Are jurors using emotions rather than evidence to
       rule on certain counts? Most counts?
       6. Your Honor, is it possible to allow the jurors to
       expand on their answers?

(App. 10862.43-44.) Upon receiving this note, the judge
dismissed the jury for the day to allow himself time to consider
how to proceed.

        The next day, the judge provided additional instructions
to the jurors. The judge first told the jurors that the questions he
had asked the day before were “the only questions which [he felt
he was] entitled to ask at that time,” so as to avoid intruding into
the jury deliberations. (App. at 10874.) He stated, however, that
he could “ask questions to [ensure] that all of you are following
your oaths as jurors, that you are reviewing the evidence, that
you are deliberating with each other and that you are following
my instructions.” (App. at 10876.) The judge then reminded the
jurors that they were under oath, and that they had promised to
decide the case fairly and impartially without being swayed by
either the race or the occupation of the defendants and witnesses.
The judge reiterated that the jurors were prohibited from using
prejudice or bias in making decisions, and explained that if any
juror did so, that juror was not following his instructions. The
court also re-instructed the jurors about their duty to deliberate,

                                25
but emphasized that “if you come to different views of the facts,
you are entitled to maintain those views as long as you consider
the views of others.” (App. at 10882.)

       The next day (April 27), the judge received three notes.
The first asked legal questions. The second was from Juror 11,
and stated:

              Is it permissible to discuss the fact that we
       have heard only selected portions of selected phone
       calls and to try to evaluate what this might mean in
       determining what was going on and what people
       intended to do?
              Can you consider omitted evidence – for
       example, the prosecution only showed us what they
       wanted to show?
              Is it permissible to try to illustrate how two
       people might understand a conversation differently?

(App. at 10896.)

        The third note asked two preliminary questions, and then
stated, “How do we inform the court a juror has violated his or
her oath (i.e., biased against the government. States prosecution
makes up stories).” (App. at 10896.) The court then instructed
the jury about the legal questions contained in the notes, and
concluded: “Ladies and gentlemen, as I said yesterday, bias is a
violation of a juror’s oath. If one of you or more of you believe
that a juror is biased against the government, I instruct you to
send me another note, saying that you believe that, and then the
remedy is that I will have the jury come into the conference
room again, one by one.” (App. 10922.) After hearing
argument from counsel, the court clarified a few points with the
jurors, including the bias instruction. The court stated:

       I want to make it clear that when we talk about bias
       . . . we are talking about bias against a specific type
       of person or against a specific occupation or bias
       against the prosecution and that the juror is unwilling
       to put aside that bias. If the juror or jurors say, they
       don’t believe someone or a particular piece of

                                 26
      evidence, that is not bias. That is just a discussion
      on the evidence presented in the case. But as I said
      before, if there are jurors who believe that a juror is
      unwilling to put aside bias, is using bias, that is
      something you should send me a note about . . . .

(App. at 10935-36.)

         Soon afterward, the court received two more notes. The
first stated:

      I believe the following statements reflect bias by a
      juror: The government lies. The prosecution made
      it up. They couldn’t get Ron White so they made
      this up about Corey Kemp. They didn’t play all of
      the calls. They omitted evidence. You didn’t hear
      what they didn’t want you to hear. The FBI lies.
      The government didn’t present the evidence to prove
      anything.

(App. at 10949.) The second note, signed by the foreman, stated
simply, “[A]sk the three questions again in your chambers.”
(App. at 10949.) Based on these notes, the court conducted
another individual voir dire, which yielded the following
information:

      Juror 1: Juror 11 refused to deliberate and discuss
      the evidence, and would not put aside her bias.
      Juror 2: Juror 11 refused to deliberate and discuss
      the evidence, and was very prejudiced against the
      government. Juror 2 also stated: “You just can’t talk
      to [Juror No. 11]. She goes nuts. She starts banging
      on the table. She won’t listen to us. Won’t let
      anybody get a word in edge-wise. . . . If we present
      her with evidence, she flips through her notes and
      does not want to hear any evidence.” Juror 2 went
      on to emphasize that “[Juror No. 11] is totally
      against the government. We have heard her say, the
      FBI are nothing but a bunch of liars.”
      Juror 3: Three jurors had a difficult time listening to
      each other, but Juror 11 just shut down and refused

                                27
to look at evidence that was shown to her. Juror 11
was also off task and biased against the FBI and the
government. Juror 3 also stated: “People disagree on
a lot of things. But when the arguments are with 11,
it’s just like slamming your head into a wall.”
Juror 4: Juror 11 refused to deliberate or discuss the
evidence, and was biased.
Juror 5: All jurors were deliberating and discussing
evidence, but Juror 11 was “a bit biased, not tending
enough to the evidence and instructions.”
Juror 6: All jurors were deliberating, and Juror 11
was not biased, but did refuse to look at the
evidence.
Juror 7: All jurors were deliberating, but Juror 11
was refusing to discuss the evidence. Further, Juror
11 was biased to a point concerning witnesses’s
occupations and was allowing that to cloud her
judgment. However, she was not letting it affect her
“that much.”
Juror 8: Juror 11 was refusing to deliberate and
would not look at any evidence. She also was biased
and unable to put that bias aside.
Juror 9: Juror 11 was refusing to deliberate and
would not look at evidence that was presented to her.
Juror 11 also held prejudices against the government
or the FBI, and was unwilling to put those prejudices
aside.
Juror 10: Juror 11 refused to deliberate, ignored
evidence, carried a personal agenda, and was biased.
Juror 11: No jurors were refusing to deliberate or
discuss the evidence. However, some people had
difficulty focusing on the specific elements of a
crime instead of just concluding that a defendant was
guilty because the juror disapproved of the
defendant’s behavior.        The jurors had been
attempting to rule on guilt or innocence count by
count, which was difficult for her, because so many
of the issues were interrelated. Once the jury began
to evaluate evidence on a different issue, Juror 11
said, “[W]ait a minute here, this contradicts what we
agreed to back here. . . . I agreed with you about

                         28
       here now I’m looking at this evidence and I don’t
       think that is there anymore.” All the jurors were
       working to put aside their biases. When asked
       whether she was biased against the FBI, Juror 11
       responded that she didn’t think so, and that her
       comments concerning the FBI were made only to
       refute another juror’s statement that they only had to
       consider the FBI’s evidence. She had not claimed
       that FBI agents always lie; instead, she had said that
       they are “probably accomplished liars” from doing
       undercover work, and that they are therefore
       probably skilled at detecting when someone is lying
       to them.
       Juror 12: Juror 11 was refusing to deliberate or
       discuss evidence, and was biased against law
       enforcement. Speaking of Juror 11’s bias, Juror 12
       stated that “it’s not the witnesses in the trial. It’s the
       preconceived notion that law enforcement lies, they
       are telling lies.”

       Juror 11 then asked to return to clarify her previous
statements. She stated that she had actually said that she
“thought FBI agents were among the most credible witnesses
because they were careful to say what they believed to be the
truth and to distinguish fact from opinion.” (App. at. 11062.)
She also claimed to have said that one agent may have been
biased going into his interview with Janice Knight because he
had previously heard so much incriminatory information about
her.

        To recap, eight jurors (1-4, 8-10, 12) stated in clear terms
that Juror No. 11 violated her duty to deliberate in good faith and
to be free of preconceived biases that informed her decision-
making. Juror No. 11 denied any allegations of bias or a refusal
to deliberate. Juror No. 5 stated that no juror was refusing to
deliberate or discuss the evidence/lack of evidence, and that all
the jurors were following the District Court’s instructions. This
juror also stated that Juror No. 11 was “a bit biased, not tending
enough to the evidence and instructions, but we are working on
that.” Juror No. 6 stated that Juror No. 11 was not refusing to
follow the instructions, and that she was not biased either.

                                  29
However, Juror No. 6 did note that Juror No. 11's answers were
“pretty much set in stone,” making it “hard to show her the
evidence.” Juror No. 7 stated that no juror was refusing to
deliberate, although he believed that Juror No. 11 refused to
consider the evidence or lack of evidence. Juror No. 7 also
noted that Juror No. 11 expressed bias against certain
occupations.

      Based on these responses, the court granted the
government’s motion to discharge Juror 11. The court stated:

       We have 11 out of the 12 jurors have made
       affirmative responses to at least one of the questions
       that I posited to them concerning juror number 11. .
       . . I find that the other 11 jurors are more credible
       than juror number 11. And to put it bluntly, I find
       that juror number 11 is in denial. She is articulate
       but she is not credible. You cannot balance her
       testimony that she made here against 11 of her
       fellow jurors. I find that they are more credible than
       she is, and I find that she is biased against the
       government. . . . I find that she has come in here and
       tried to articulate using an educated background.
       She is articulate but she is in total denial of what I
       find to be the facts as expressed by the other 11
       jurors . . . .

(App. at 11079-80.)

       The District Court then seated an alternate juror who had
been sequestered during the first round of deliberations.

       D.     The Verdict

       On May 10, 2005, the reconstituted jury returned its
verdict. Kemp was convicted of conspiracy, seven counts of
wire fraud, 11 counts of mail fraud, one count of attempted
extortion, one count of extortion, two counts of making false
statements to a bank, and four counts of filing a false income tax
return; Hawkins was convicted of one count of wire fraud and
three counts of perjury; Holck and Umbrell were convicted of

                                30
conspiracy and two counts of wire fraud; and Knight was
convicted of two counts of making false statements to the FBI.
The jury also acquitted the defendants or was unable to reach a
verdict on a number of charges.10
       Ultimately, the District Court sentenced Kemp to 120
months’ imprisonment, Holck to 28 months’ imprisonment,
Umbrell to 27 months’ imprisonment, Hawkins to 33 months’
imprisonment, and Knight to 5.5 months’ imprisonment. All
five defendants then filed timely appeals.

                               II.

      We have jurisdiction of an appeal from a judgment of
conviction pursuant to 28 U.S.C. § 1291.

                               III.

        The appellants challenge their convictions on many
grounds. Kemp argues that the government failed to present
sufficient evidence to support his convictions for mail fraud
relating to his asset-locator business. Holck and Umbrell
challenge their wire fraud convictions by arguing that the
indictment failed to state an offense, the District Court
erroneously instructed the jury, and the government presented
insufficient evidence to sustain the convictions. Holck and
Umbrell also argue that their conspiracy convictions must be
vacated because there was a prejudicial variance between the


      10
          The jury found Kemp not guilty of eight counts of wire
fraud, one count of making false statements to a bank, and four
counts of money laundering; Hawkins not guilty of conspiracy,
three counts of wire fraud, and one count of perjury; Holck and
Umbrell not guilty of three counts of wire fraud; and Knight not
guilty of one count of wire fraud. The jury was unable to reach a
verdict as to Kemp on four counts of wire fraud and one count of
mail fraud; as to Holck and Umbrell on two counts of wire fraud
and one count of mail fraud; and as to Knight on the conspiracy
charge, two counts of wire fraud, and one count of making false
statements to the FBI. The government withdrew one count of
wire fraud against Kemp, Holck, and Umbrell.

                               31
crime charged in the indictment and the evidence adduced at
trial. Hawkins claims that the government presented insufficient
evidence to support his convictions for wire fraud and perjury,
that the District Court’s jury instructions on wire fraud omitted
an essential element, and that the Court wrongly admitted
several forms of unfairly prejudicial evidence. Finally, all
appellants contend that the District Court erred by individually
questioning the jurors upon receiving complaints of juror
misconduct and then discharging Juror 11. We consider each of
these sundry claims in turn.

       A.     Kemp’s Mail Fraud Convictions

        Kemp claims that the government presented insufficient
evidence to support his convictions for honest services mail
fraud concerning his role in the asset-locator business for which
he received $1,300. We review sufficiency-of-the-evidence
challenges with particular deference to the jury’s verdict. United
States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). Because Kemp
did not raise this argument to the District Court in his motion for
acquittal, we review for plain error. United States v. Vampire
Nation, 451 F.3d 189, 203 (3d Cir. 2006). Plain error requires:
“(1) an error; (2) that is plain; and (3) that affected substantial
rights.” Id. As we will explain, the jury’s conclusion on this
count was supported by the evidence and not plain error.

        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. Antico, 275 F.3d 245, 261 (3d Cir. 2001). Congress has
clarified that “the term ‘scheme or artifice to defraud’ includes a
scheme or artifice to deprive another of the intangible right of
honest services.” 18 U.S.C. § 1346. Honest services fraud, in
turn, typically occurs in either of two situations: “(1) bribery,
where a [public official] was paid for a particular decision or
action; or (2) failure to disclose a conflict of interest resulting in
personal gain.” Antico, 275 F.3d at 262-63. The government
pursued both of these discrete theories in prosecuting the mail
fraud counts at issue.


                                 32
        Kemp maintains that his convictions must be vacated
because the government presented insufficient evidence to prove
honest services fraud under either the bribery theory or the
failure-to-disclose theory.11 Because Kemp challenges the
sufficiency of the evidence of these two theories, and has not
argued that either was legally invalid or unconstitutional, we will
affirm if the evidence is sufficient to support a judgment on
either theory. See United States v. Syme, 276 F.3d 131, 144 (3d
Cir. 2002) (explaining that “if the evidence is insufficient to
support a conviction on one alternative theory in a count but
sufficient to convict on another alternative theory that was
charged to the jury in the same count, then a reviewing court
should assume that the jury convicted on the factually sufficient
theory and should let the jury verdict stand”).

        Here, a reasonable jury could conclude beyond a
reasonable doubt that Kemp “was paid for a particular decision
or action,” Antico, 275 F.3d at 263, and thus convict him of
honest services fraud under a bribery theory. The government
presented evidence that Kemp and Anderson had an arrangement
where Anderson would locate owners of unredeemed city bonds
and attempt to help them cash their bonds. This project required
Kemp to exercise his authority as treasurer: he provided
Anderson with a list of holders of outstanding bonds and a form
letter for her to use; also, the treasurer’s office was responsible
for contacting the banks to facilitate the ultimate repayment.
When Anderson was asked at trial what Kemp would contribute
to the business to earn his share of its proceeds, she identified
only these first two official actions. A reasonable jury certainly
could have concluded that Kemp was paid for the reasons that
Anderson pinpointed – taking official action that aided the
business.

       Kemp argues that he was paid not for taking particular
actions but because he held a stake in the business. However,


       11
          Kemp does not dispute that as treasurer, he was a public
official who owed a duty to provide honest services to the public.
See 65 Pa. Cons. Stat. § 1102; see also Antico, 275 F.3d at 262
n.18.

                                33
Anderson testified that the company was formally owned by her
and a friend, and not Kemp. While Kemp did suggest the idea of
the asset-locator business to Anderson, a reasonable jury could
have found it more likely that Kemp was paid $1,300 for taking
actions in favor of the business than for providing an inchoate
idea.

       We have repeatedly recognized that accepting money in
exchange for an official action is a form of honest services
fraud.12 See United States v. Panarella, 277 F.3d 678, 690 (3d
Cir. 2002); Antico, 275 F.3d at 262-63. As Pennsylvania law
provides, “public office is a public trust and . . . any effort to
realize personal financial gain through public office other than
compensation provided by law is a violation of that trust.” 65
Pa. Cons. Stat. § 1101.1. Here, the government presented
sufficient evidence for a reasonable jury to find beyond a
reasonable doubt that Kemp violated that trust by soliciting and
accepting payment in exchange for taking official action.
Accordingly, we find no plain error and reject Kemp’s challenge
to his mail fraud convictions.

       B.     Holck’s and Umbrell’s Wire Fraud Convictions

              1.      Challenge to the Indictment

        Holck and Umbrell lead off their attack on their wire
fraud convictions by arguing that their convictions under the
bribery theory of honest services fraud must be vacated because
that theory was not charged in the indictment. We deem an
indictment sufficient so long as it “(1) contains the elements of


       12
          This case is distinguishable from United States v.
McNeive, 536 F.2d 1245 (8th Cir. 1976), where the Eighth Circuit
concluded that a chief plumbing inspector’s acceptance of
unsolicited gratuities that were attached to applications for permits
that required only ministerial action did not amount to honest
services fraud. Id. at 1251. Even if Kemp’s actions here were
largely ministerial, Kemp’s role in setting the scheme in motion
and then demanding payment was of a far more insidious order
than the passive behavior of the defendant in McNeive.

                                 34
the offense intended to be charged, (2) sufficiently apprises the
defendant of what he must be prepared to meet, and (3) allows
the defendant to show with accuracy to what extent he may
plead a former acquittal or conviction in the event of a
subsequent prosecution.” United States v. Vitillo, --- F.3d ----,
2007 WL 1805332 (3d Cir. 2007) (internal quotation marks
omitted). Moreover, “no greater specificity than the statutory
language is required so long as there is sufficient factual
orientation to permit the defendant to prepare his defense and to
invoke double jeopardy in the event of a subsequent
prosecution.” United States v. Rankin, 870 F.2d 109, 112 (3d
Cir. 1989). We exercise plenary review over this challenge.
United States v. Hedaithy, 392 F.3d 580, 590 n.10 (3d Cir.
2004).

        We conclude that the indictment here adequately charged
Holck and Umbrell with the bribery theory of honest services
wire fraud. The wire fraud counts of the indictment (counts 15-
22) plainly alleged honest services fraud, charging Holck and
Umbrell with engaging in “a scheme to defraud the City of
Philadelphia and its citizens of the right to defendant COREY
KEMP’S honest services in the affairs of the City of
Philadelphia.” (App. at 587.) Then, the specific factual
allegations – some of which were incorporated by reference to
the allegations of the conspiracy charge, see Fed. R. Crim. P.
7(c)(1) (“A count may incorporate by reference an allegation
made in another count.”); see also United States v. Markus, 721
F.2d 442, 444 (3d Cir. 1983) – were sufficient to alert Holck and
Umbrell that the government planned to pursue both theories.
The indictment refers to “the benefits that HOLCK and
UMBRELL extended to Kemp with the intent to influence
KEMP’s official actions” (App. at 491), and charges that
“defendants GLENN K. HOLCK and STEPHEN M.
UMBRELL, on behalf of their employer, Commerce Bank,
provided benefits to Kemp in the form of otherwise unavailable
loans in exchange for favorable decisions by KEMP as Treasurer
of Philadelphia” (App. at 554). These allegations were sufficient
to charge Holck and Umbrell with honest services fraud under a
bribery theory, and accordingly, we reject Holck and Umbrell’s
argument that the indictment should have been dismissed.


                               35
              2.     The “Stream of Benefits” Instruction

        Holck and Umbrell next claim that the District Court
misstated the law when instructing the jury on the bribery theory
of honest services fraud, such that the jury was invited to convict
if it concluded that Holck and Umbrell had provided benefits to
Kemp in a “general attempt to curry favor.” We exercise
plenary review over whether the District Court correctly stated
the law, and consider “whether the charge, taken as a whole,
properly apprise[d] the jury of the issues and the applicable
law.” Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d
240, 245 (3d Cir. 2006) (alteration in original) (internal
quotation marks omitted).

        While we agree with Holck and Umbrell that bribery may
not be founded on a mere intent to curry favor, we nevertheless
reject their challenge to the District Court’s instructions. As
Holck and Umbrell recognize, there is a critical difference
between bribery and generalized gifts provided in an attempt to
build goodwill. The Supreme Court has explained, in
interpreting the federal bribery and gratuity statute, 18 U.S.C. §
201, that bribery requires a quid pro quo, which includes an
“intent ‘to influence’ an official act or ‘to be influenced’ in an
official act.” United States v. Sun-Diamond Growers of Cal.,
526 U.S. 398, 404 (1999) (quoting 18 U.S.C. § 201(b)). This
may be contrasted to both a gratuity, which “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,” and to a noncriminal gift extended to
a public official merely “to build a reservoir of goodwill that
might ultimately affect one or more of a multitude of unspecified
acts, now and in the future.” Id. at 405. This discussion is
equally applicable to bribery in the honest services fraud context,
and we thus conclude that bribery requires “a specific intent to
give or receive something of value in exchange for an official
act.” Id. at 404-05.

       Holck and Umbrell arrive at their conclusion that this
requirement was elided by the instructions only by reading
certain sections of the jury charge out of context, which “is not
the way we review jury instructions, because a single instruction

                                36
to a jury may not be judged in artificial isolation, but must be
viewed in the context of the overall charge.” United States v.
Park, 421 U.S. 658, 674 (1975). Read fairly, the instructions
proffered by the District Court repeatedly emphasized the critical
quid pro quo, explaining that “[t]o establish such bribery the
government must prove beyond a reasonable doubt that there
was a quid pro quo, . . . that the benefit was offered in exchange
for the official act.” (App. at 9642.) The Court continued,
“where there is a stream of benefits given by a person to favor a
public official, . . . it need not be shown that any specific benefit
was given in exchange for a specific official act. If you find
beyond a reasonable doubt that a person gave an official a
stream of benefits in implicit exchange for one or more official
acts, you may conclude that a bribery has occurred.” (App. at
9643.) Finally, the Court explained, “[t]o find the giver of a
benefit guilty, you must find that the giver had a specific intent
to give . . . something of value in exchange for an official act,
that is, that the accused had the specific intent to engage in such
a quid pro quo exchange.” (App. at 9643-44.) This instruction
correctly described the law of bribery, and left no danger that the
jury would convict upon merely finding that Holck and Umbrell
provided benefits to Kemp in a general attempt to curry favor or
build goodwill.

        Moreover, we agree with the government that the District
Court’s instruction to the jury that it could convict upon finding
a “stream of benefits” was legally correct. The key to whether a
gift constitutes a bribe is whether the parties intended for the
benefit to be made in exchange for some official action; the
government need not prove that each gift was provided with the
intent to prompt a specific official act. See United States v.
Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998). Rather, “[t]he
quid pro quo requirement is satisfied so long as the evidence
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.” Id. 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.” Id.; see also United
States v. Sawyer, 85 F.3d 713, 730 (1st Cir. 1996) (stating that “a
person with continuing and long-term interests before an official

                                 37
might engage in a pattern of repeated, intentional gratuity
offenses in order to coax ongoing favorable official action in
derogation of the public’s right to impartial official services”).
While the form and number of gifts may vary, the gifts still
constitute a bribe as long as the essential intent – a specific intent
to give or receive something of value in exchange for an official
act – exists. This theory was accurately and entirely presented to
the jury in the jury instructions, and accordingly, we reject Holck
and Umbrell’s argument that the instructions as proffered were
inadequate.

         3. Legal Validity of Failure to Disclose Theory

        Holck and Umbrell next present three arguments that the
District Court’s jury instructions concerning the failure-to-
disclose theory of honest services fraud were legally erroneous.
If, as Holck and Umbrell argue, the alternative theory is legally
invalid, we must vacate their convictions. See Syme, 276 F.3d at
144. Our review over whether the District Court correctly stated
the law is plenary. Armstrong, 438 F.3d at 245. For the reasons
discussed below, we conclude that the District Court correctly
charged the jury.

        Holck and Umbrell first argue that the jury instructions
were inconsistent with our decision in Panarella. According to
Holck and Umbrell, when we held in Panarella that a “public
official who conceals a financial interest in violation of state
criminal law while taking discretionary action that the official
knows will directly benefit that interest commits honest services
fraud,” 277 F.3d at 694, we ruled that the discretionary action
must benefit the public official himself, and not the person or
organization that provided the benefit. They thus argue that the
District Court’s instructions, which permitted the jury to convict
upon finding that Kemp took “a discretionary official action
benefitting the giver of the benefit” (App. at 9644), wrongly
stated the law.

       A complete analysis of Panarella plainly demonstrates
the defectiveness of Holck and Umbrell’s position. In
Panarella, Loeper, while Majority Leader of the Pennsylvania
Senate, worked as a business consultant for a tax collection

                                 38
business. Id. at 681. Loeper failed to disclose his income from
the business as required by state law, and spoke and voted
against bills that would have harmed that business. Id. We held
that this conduct constituted honest services fraud, and
emphasized the importance of disclosing conflicts of interest.
Id. at 696-97. We explained:

       Were it easy to detect and prosecute public officials
       for bribery, the need for public officials to disclose
       conflicts of interest would be greatly reduced. . . .
       One reason why federal and state law mandates
       disclosure of conflicts of interest, however, is that it
       is often difficult or impossible to know for sure
       whether a public official has acted on a conflict of
       interest. The only difference between a public
       official who accepts a bribe and a public official who
       receives payments while taking discretionary action
       that benefits that payor, as Loeper did in this case, is
       the existence of a quid pro quo whereby the public
       official and the payor agree that the discretionary
       action taken by the public official is in exchange for
       payment. Recognizing the practical difficulties in
       proving the existence of such a quid pro quo,
       disclosure laws permit the public to judge for itself
       whether an official has acted on a conflict of interest.

Id. at 697 (emphasis added) (citation omitted). This explanation
is consistent with our opinion in Antico, where we emphasized,
broadly, the duty of a public official “to disclose material
information affecting an official’s impartial decision-making.”
275 F.3d at 264. Accordingly, we reject Holck and Umbrell’s
argument that the discretionary action must directly benefit the
public official, and hold that honest services fraud encompasses
a situation where a public official conceals a financial interest in
violation of state criminal law while taking discretionary action
that the official knows will directly benefit the individual or
organization behind that financial interest. We thus reject Holck
and Umbrell’s challenge on this front.

       Holck and Umbrell next argue that the jury instructions
misstated the law because they did not require the jury to find

                                 39
that Holck and Umbrell failed to disclose a financial interest in
violation of a state criminal law. However, this argument
misapprehends Pennsylvania’s statutory structure. The District
Court read to the jury the provisions of 65 Pa. Cons. Stat. §
1103(a)-(c), all of which are felonies. See 65 Pa. Cons. Stat. §
1109(a). Thus, we also reject this claim.

        Finally, Holck and Umbrell contend that the District
Court’s instructions about the species of loans that public
officials are required to report were incomplete. They argue that
in addition to the proffered instructions, which stated that “a
commercially reasonable loan made in the ordinary course of
business” is exempt from the reporting requirement,13 the
District Court should have informed the jury that “the financial
terms of the loan must be below-market or that the loan must be
outside the ordinary course of business.”

        To the extent that the language proposed by Holck and
Umbrell adds anything to the District Court’s instruction, we
conclude that the District Court was not obligated to include it.
Holck and Umbrell’s authority for their position – 4 Pa. Code §
7.153(b)(3) and Executive Order No. 16-92 – concerns gifts that
public officials are prohibited from accepting, and are thus
inapposite here. The crucial issue is whether Kemp was required
to report the loans; whether he was entitled to accept the loans is
a different matter altogether. Accordingly, we conclude that the
District Court correctly and fully14 instructed the jury about the


       13
          These instructions were consistent with Pennsylvania
law, which requires public officials to report “[t]he name and
address of the source and the amount of any gift or gifts valued in
the aggregate at $250 or more and the circumstances of each gift,”
65 Pa. Cons. Stat. § 1105(b)(6); in defining “gift,” the statute
excludes from the general definition “a commercially reasonable
loan made in the ordinary course of business,” §§ 1102, 13A03.
       14
          The District Court instructed the jury that to determine
whether the loans provided by Kemp were gifts that were required
to be reported, it should consider “whether defendant Holck and/or
defendant Umbrell followed established Commerce Bank

                                40
governing law concerning loans.

       4.      Sufficiency of the Evidence for Bribery Theory

       Holck and Umbrell’s final challenge to their honest
services wire fraud convictions is that the government presented
insufficient evidence to sustain those convictions under a bribery
theory. According to Holck and Umbrell, the government failed
to prove: (1) that they made a payment to Kemp; (2) that they
received a benefit from Kemp; and (3) that the two were directly
connected. As noted above, we will “view the evidence in the
light most favorable to the Government and sustain the verdict if
any rational juror could have found the elements of the crime
beyond a reasonable doubt.” United States v. Cartwright, 359
F.3d 281, 286 (3d Cir. 2004) (internal quotation marks omitted).

        As we held above, bribery requires a specific intent to
give or receive something of value in exchange for an official
act. We note that 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.” Antico, 275 F.3d at 257. As we
have recognized, “‘the official and the payor need not state the
quid pro quo in express terms, for otherwise the law’s effect
could be frustrated by knowing winks and nods.’”15 Id. at
258 (quoting United States v. Bradley, 173 F.3d 225, 231 (3d



procedures applicable for similar loans, whether they intended to
give a benefit or gift to defendant Kemp, whether the loans were
commercially reasonable, made in the ordinary course of business,
whether the loans were considered by defendant Kemp to be a
benefit or gift, the terms of the loan and other factors . . . that you
consider material.” (App. at 9651.) This appropriately conveyed
to the jury the many-faceted issue.
       15
           While we made that statement while discussing the Hobbs
Act, it is no less applicable in the present context. See, e.g., United
States v. Woodward, 149 F.3d 46, 57 (1st Cir. 1998) (permitting
similar form of proof in honest services fraud case).

                                  41
Cir. 1999)).

        We first reject Holck and Umbrell’s argument that the
benefits that they were accused of bestowing on Kemp – a
variety of loans – cannot constitute bribes (or the quid of a quid
pro quo) because they were made at the prevailing interest rates
in the regular course of business. As a factual matter, a
reasonable jury certainly could have found that these loans were
not advanced in the usual course of business and were instead
extended to Kemp and his friends solely because of Kemp’s
position. For instance, Umbrell agreed to loan $7,500 unsecured
to a person Kemp described as having “shaky credit” without
even seeing an application or speaking to the borrower.
Umbrell’s stated purpose for approving this loan was to make
Kemp “look good.” Moreover, Kemp’s mortgage loans were
approved by Holck and Umbrell before Kemp filed an
application, and despite the fact that Commerce’s computer
program and underwriter rejected the mortgages. Indeed, an
underwriter from Commerce testified that the procedures used to
approve this loan failed to comply with standard practice. This
evidence is sufficient to support a jury’s conclusion that these
loans were made available to Kemp only because he was the
treasurer.

        Moreover, as a legal matter, we conclude that providing a
loan to a public official (or his friends or family) that would have
otherwise been unavailable to that official or available at a
higher interest rate may constitute a bribe. This is consistent
with our discussion in Antico where, concerning quid pro quo
under the Hobbs Act, we broadly described a bribe as involving
“payments or other consideration.” Id. at 257 (emphasis added).
Further, the conclusion comports with the federal bribery statute,
which refers to “anything of value,” and other general definitions
of bribery. See, e.g., Black’s Law Dictionary 186 (7th ed. 1999)
(defining “bribery” as “[t]he corrupt payment, receipt, or
solicitation of a private favor for official action”). It also takes
account of the commonsense notion that a loan may be of
immense value to the recipient: for instance, here, Kemp’s
mortgage loan allowed him to purchase a house.

       Our conclusion that a loan may constitute the quid in a

                                42
bribery prosecution is also supported by the relevant caselaw.
Most notably, in United States v. Gorman, 807 F.2d 1299 (6th
Cir. 1986), the defendant argued that a loan was not a “thing of
value” under § 201 because he fully repaid the loan with interest.
Id. at 1304. The Sixth Circuit rejected that argument, because at
the time that the defendant received the loan he was having
“severe financial difficulties” and it was unclear whether such a
loan would have been available to him in the ordinary course of
business. Id. at 1305. The court focused on the value that the
recipient “subjectively attache[d] to the items received.” Id. A
loan was also recognized as a potential quid in United States v.
Williams, 705 F.2d 603 (2d Cir. 1983). There, a United States
Senator was convicted under the federal bribery statute for
“seeking funds for the financing and purchase of a mining
venture in which he had an interest in exchange for his
assistance in obtaining government contracts for the venture.”
Id. at 612. One of the two sorts of funds that the senator sought
was a $100 million loan that was to be repaid with interest.
Id. at 620. The court never questioned that the loan could serve
as a bribe, and termed the evidence against the senator
“overwhelming.” Id. at 612; see also United States v. Crozier,
987 F.2d 893, 901 (2d Cir. 1993) (“[A]s we have held in
connection with § 201, any payment that the defendant
subjectively believes has value, including a loan, constitutes a
thing ‘of value’ within the meaning of § 666(c)”). Thus, we
conclude that loans, so long as they are granted in exchange for
an official act, may drive a bribery prosecution.16

        We also conclude that Holck and Umbrell’s assertion that
they did not receive any benefit from Kemp is contradicted by
the record evidence. Despite Holck and Umbrell’s protestations,
a reasonable jury could undoubtably have concluded that Kemp
provided a benefit to them when he rigged the bidding for the
NTI line of credit in Commerce’s favor. The government
showed that after Commerce submitted its bid, Kemp told White
to tell Holck and Umbrell not to submit their bids first, because


       16
         Indeed, given that the government must also prove the
loan was given in exchange for some official action, there is little
danger that honest loans will trigger criminal liability.

                                43
then Kemp could tell White about the other bids. This alone
permitted a reasonable jury to conclude that Kemp intended to
benefit Commerce to the detriment of other banks. Then Kemp
called Holck and gave him specific instructions about how
Commerce could tweak its initial bid to guarantee that its bid
would win – a courtesy that he did not extend to any other bank.
Indeed, when Wachovia attempted to rebid, Kemp ignored its
request. While a second round of bidding was instituted – on the
orders of Kemp’s boss and against Kemp’s wishes – only
Commerce was told exactly what to bid to ensure success. This
evidence was plainly sufficient for the jury to conclude that
Holck and Umbrell received a benefit from Kemp.

        Finally, we reject Holck and Umbrell’s contention that
the government failed to present evidence of a
pro demonstrating that Holck and Umbrell extended loans to
Kemp in exchange for favorable treatment. Especially damaging
to Holck and Umbrell’s position is the June 24, 2003 phone call
between Umbrell and Kemp. There, Umbrell agreed to waive
the $3,500 appraisal fee for the church loan, and then, while the
two discussed the renewal of some of Philadelphia’s certificates
of deposit with Commerce, Kemp told Umbrell that Umbrell
could always speak to Kemp directly because “you are my
f__king guy. . . . So you get special treatment.” While Kemp
did not elaborate about why Umbrell was his “guy,” the jury
certainly could have inferred that it was because of the consistent
flow of loans and perks – including the waiver of the appraisal
fee discussed moments before – that Holck and Umbrell
extended. The evidence also showed that not only did Kemp say
that Holck and Umbrell would get special treatment – they did.
The NTI bidding process is a particularly egregious example.
Further, the government showed that Holck and Umbrell
believed that they would receive this special treatment, as
illustrated by the phone call between White, Holck, and Umbrell,
where Holck appeared surprised that any bank besides
Commerce would get a second opportunity to bid, stating that
“you know we made . . . the revised proposal to Corey? . . . And
something’s not smelling right.” Similarly, Kemp’s explanation
of the NTI transaction to his friend, in which Kemp stated that
Commerce Bank had better take care of him because he hooked
them up with the NTI deal, evinced his understanding that he

                                44
was giving Holck and Umbrell special treatment in exchange for
loans. This course of conduct permitted the jury to infer that
Kemp had agreed with Holck and Umbrell that he would take
official action in their favor in exchange for their providing him
loans and benefits.

        Accordingly, we conclude that the government presented
sufficient evidence to support the jury’s verdict against Holck
and Umbrell on the honest services wire fraud charge.17

       C.     Holck’s and Umbrell’s Conspiracy Convictions

       Holck and Umbrell argue that their convictions for
conspiracy to commit honest services fraud must be vacated
because there was a prejudicial variance between the charge in
the indictment and the proof presented at trial.18 They claim that


       17
          Because we have rejected Holck and Umbrell’s arguments
that the failure to disclose theory was legally invalid, see part
III.B.3., supra, we need not consider whether the District Court
correctly concluded that the government presented insufficient
evidence to convict on the failure-to-disclose theory. As we
discussed above, because the evidence was “sufficient to convict
on another alternative theory that was charged to the jury in the
same count, [we will] assume that the jury convicted on the
factually sufficient theory and [will] let the jury verdict stand.”
Syme, 276 F.3d at 144.
       18
         Our jurisprudence distinguishes between challenges to the
sufficiency of the evidence, in which the appellant claims that the
government failed to prove an essential element of conspiracy, and
variance claims, in which the appellant argues that the government
proved multiple conspiracies instead of the one charged in the
indictment. For instance, in United States v. Kenny, 462 F.2d 1205
(3d Cir. 1972), we explained, before commencing our variance
analysis, that it was “not a case where there was no evidence of the
existence of a conspiracy”; rather, the government allegedly
“proved several separate unrelated conspiracies under each
conspiracy count.” Id. at 1216. Similarly, in United States v.
Perez, 280 F.3d 318 (3d Cir. 2002), we considered both sufficiency

                                45
while the indictment alleged a single conspiracy involving
Holck, Umbrell, White, Kemp, Hawkins, and Knight, the
evidence adduced at trial proved, if anything, that Holck and
Umbrell, Knight, and Hawkins each joined a separate conspiracy
with White and Kemp. “A conviction must be vacated when (1)
there is a variance between the indictment and the proof
presented at trial and (2) the variance prejudices a substantial
right of the defendant.” United States v. Kelly, 892 F.2d 255,
258 (3d Cir. 1989). As we discuss below, we agree with Holck
and Umbrell that there was a variance; however, we will
nevertheless affirm their convictions because they have failed to
demonstrate prejudice.

              1.     Variance

       There is a variance if the indictment charges a single
conspiracy while the evidence presented at trial proves only the
existence of multiple conspiracies. Id. We must determine
“whether there was sufficient evidence from which the jury
could have concluded that the government proved the single


of the evidence and variance challenges to the same conspiracy
conviction. Id. at 342. The sufficiency of the evidence analysis
concerned whether the defendants possessed the “requisite
knowledge of the illegal objective of the scheme to distribute
methamphetamine such that they could form an intent or agreement
to join the conspiracy.” Id. at 343. One defendant claimed that he
was caught with a drug distributor only by chance and was not
involved with drugs, while the other claimed that he had a common
buyer-seller relationship with the distributor and was not involved
in a conspiracy to distribute. Id. This can be contrasted to the
variance argument, where the defendants argued that while they
may have been involved in a conspiracy to distribute drugs in New
York, they were not part of the same conspiracy as men who dealt
drugs in New Jersey. Id. at 347. Because Holck and Umbrell
concede that the government presented sufficient evidence that
they were involved in a conspiracy with some, but not all, of their
co-defendants, we interpret their claim as alleging a prejudicial
variance, rather than as a pure sufficiency of the evidence
challenge.

                                46
conspiracy alleged in the indictment.” Id. Thus, we evaluate
whether the record, when viewed in the light most favorable to
the government, contains substantial evidence that Holck and
Umbrell were part of a single conspiracy that also included
Kemp, White, Hawkins, and Knight.

        In order to determine whether a group of individuals
engaged in a single conspiracy or multiple conspiracies, we
evaluate three factors. We consider: (1) “whether there was a
common goal among the conspirators”; (2) “whether the
agreement contemplated bringing to pass a continuous result that
will not continue without the continuous cooperation of the
conspirators”; and (3) “the extent to which the participants
overlap in the various dealings.” Id. at 259 (internal quotation
marks omitted). Here, the government has failed to satisfy the
first Kelly factor.

       The crux of Holck and Umbrell’s argument is that the
government charged a hub-and-spokes conspiracy but failed to
prove the existence of a rim connecting the spokes. That is, they
claim that Kemp and White were the hub, and entered into
separate agreements with three unconnected spokes – Holck and
Umbrell, Knight, and Hawkins. This argument is predicated on
the seminal case Kotteakos v. United States, 328 U.S. 750
(1946). Kotteakos involved an indictment that charged 32
individuals with conspiracy to obtain loans under a Fair Housing
Act program by making false applications; Simon Brown was at
the center of the alleged conspiracy, helping a disparate group of
individuals obtain these loans. Id. at 752-53. The Supreme
Court held that the facts presented failed to prove a single
conspiracy:

       Except for Brown, the common figure, no
       conspirator was interested in whether any loan
       except his own went through. And none aided in
       any way, by agreement or otherwise, in procuring
       another’s loan. The conspiracies therefore were
       distinct and disconnected, not parts of a larger
       general scheme, both in the phase of agreement with
       Brown and also in the absence of any aid given to
       others as well as in specific object and result. There

                                47
       was no drawing of all together in a single, over-all,
       comprehensive plan.

Blumenthal v. United States, 332 U.S. 539, 558 (1947)
(discussing Kotteakos).

        In Blumenthal, the Court found a single conspiracy where
the defendants were all involved in a scheme to acquire whiskey
and resell it above authorized prices. Distinguishing these facts
from Kotteakos, the Court noted that all the conspirators “knew
of and joined in the overriding scheme” and “sought a common
end” to sell the whiskey, so that “the several agreements were
essential and integral steps.” Id. at 559. The contrast between
Kotteakos and Blumenthal helps us to determine whether an
impermissible variance has occurred. As this Court has noted,
the Government may not charge “multiple unrelated
conspiracies,” but it can charge a “master conspiracy [with]
more than one subsidiary scheme.” United States v. Kenny, 462
F.2d 1205, 1216 (3d Cir. 1972); see also United States v.
Chandler, 388 F.3d 796, 811 (11th Cir. 2004) (stating that
“although each of these alleged spoke conspiracies had the same
goal, there was no evidence that this was a common goal”).

       Here, Holck and Umbrell argue that they could not have
joined the same conspiracy as Knight and Hawkins, because they
neither knew about Knight’s and Hawkins’s activities nor were
dependent on those activities. The government, on the other
hand, argues that it proved both knowledge and interdependence.

        First, we agree with Holck and Umbrell that the
government failed to present evidence that they either knew or
should have known about Knight’s and Hawkins’s activities.
While the government claims that Holck and Umbrell acted
“with knowledge that White was serving interests in addition to
theirs,” it presents no factual support for this assertion. Nor is
this the type of conspiracy that must have had other members; it
would have been perfectly reasonable for Holck and Umbrell to
have believed that they were doing business with only Kemp and
White. Cf. Chandler, 388 F.3d at 811 n.21 (“In a drug
conspiracy, in which the object of the conspiracy is clearly
illegal and there are various clandestine functions to perform, the

                                48
conspirators can be charged with knowledge that others are
performing these different functions. In this case, however, such
knowledge may not be imputed to defendants since each of their
redemptions was complete unto itself.” (citation omitted)). This
may be contrasted with Blumenthal, where three salesmen were
convicted of conspiring to sell whiskey at above-ceiling prices in
violation of the Emergency Price Control Act. 332 U.S. at 541.
The Court held that while “each salesman aided in selling only
his part,” id. at 559, they could nevertheless form part of a single
conspiracy, because they “knew or must have known that others
unknown to them were sharing in so large a project,” id. at 558.
Here, there was no such evidence that Holck and Umbrell should
have known that the conspiracy involved parts beyond White
and Kemp. Accordingly, given the absence of any evidence to
the contrary, we agree with Holck and Umbrell that the
government failed to prove that they were aware of the existence
of the other spokes.

        Second, we agree with Holck and Umbrell that their
activities and those of the other spokes were neither
interdependent nor mutually supportive. In evaluating
interdependence, we consider how helpful one individual’s
contribution is to another’s goals. See United States v. Macchia,
35 F.3d 662, 671 (2d Cir. 1994) (describing inquiry as “the
extent to which the success or failure of one conspiracy is
independent of a corresponding success or failure by the other”).
We reiterate that interdependence serves as “evidence of an
agreement,” Perez, 280 F.3d at 346; that is, it helps establish
whether the alleged coconspirators are “all committed to the
same set of objectives in a single conspiracy,” Smith, 82 F.3d at
1271.

       Chain-shaped conspiracies present the classic examples of
interdependence. For instance, in Perez, 280 F.3d at 347, we
concluded that two drug sellers and a drug smuggler were
interdependent, even though there was a middleman between
them, because “[the dealers] depended on a scheme involving
[the smuggler and the middleman] and the shipment from the
Philippines to possess and distribute the illegal drug.” See also
United States v. Portela, 167 F.3d 687, 697 (1st Cir. 1999)
(explaining that “a single conspiracy [exists] if the continued

                                49
health of the trafficking and distribution network necessarily
depends on the continued efforts of multiple suppliers”); United
States v. Evans, 970 F.2d 663, 670 (10th Cir. 1992)
(“Interdependence is present when each alleged coconspirator . .
. depend[s] on the operation of each link in the chain to achieve
the common goal.” (alterations in original) (internal quotation
marks omitted)).19

       We also concluded that there was a single conspiracy in
United States v. Kenny, 462 F.2d 1205 (3d Cir. 1972), a non-
drug case. Kenny involved a large-scale scheme that required
contractors to pay kickbacks to government officials in order to
procure government contracts. Id. at 1217. While the scheme


       19
          In the typical chain conspiracy, the actions of each co-
conspirator benefit the overall conspiracy. It is for this reason that
the “chain conspiracy” cases relied on by the Government are of
limited relevance to our discussion. The paradigmatic example in
which the chain metaphor provides guidance is the drug
conspiracy, where the conspirators often “share a common goal,
such as the possession and distribution of narcotics for profit.” See
United States v. Tarantino, 846 F.2d 1384, 1393 (D.C. Cir. 1988);
United States v. Russell, 134 F.3d 171, 182 (3d Cir. 1998) (stating
that “the common goal of this conspiracy was to make money
selling cocaine”); Quintero, 38 F.3d at 1337 (“The prosecution
must . . . demonstrate that a defendant, charging variance, knew
that he was part of a larger drug operation.”); United States v. Barr,
963 F.2d 641, 650 (3d Cir. 1992); Salmon, 944 F.2d at 1117
(conspiracy to sell cocaine for profit or another benefit); Padilla,
982 F.2d at 115 (stating that “there was a common goal to obtain
and sell cocaine for profit and knowledge attributable to [the
defendant] of a larger network”); United States v. Kelly, 892 F.2d
255 (3d Cir. 1989) (conspiracy to possess and manufacture
methamphetamine); id. at 258 (describing the Government’s theory
as the “classic chain conspiracy”). We do not wish to imply that
every individual involved with a drug conspiracy is necessarily a
member of that one conspiracy. “[E]ven if we determine that a
chain conspiracy exists, we may still conclude that certain actions
were outside the chain and formed a separate conspiracy.”
Tarantino, 846 F.2d at 1393.

                                 50
involved a diverse group of individuals, the evidence showed “a
determined group who repeatedly cooperated closely to achieve
the common purpose of self-enrichment by extracting
kickbacks.” Id. Moreover, “[t]he key to success of all their
depravities was their common control over the administration of
city and county government.” Id.; see also United States v.
Greenidge, --- F.3d ----, 2007 WL 205076 (3d Cir. 2007)
(finding single conspiracy where depositors of stolen and altered
checks “did not represent independent customers, but were an
integral part of this [pyramidal] ‘corporate’ structure”).

        On the other hand, in Smith, we concluded that there was
no interdependence between two kickback schemes because
“[t]he co-conspirators in each state derived no benefit, financial
or otherwise, from Smith’s activities in the other state, nor was
the success of the conspiracy in one state contingent on the
success of the conspiracy in the other.” 82 F.3d at 1271.
Similarly, in United States v. Camiel, 689 F.2d 31 (3d Cir.
1982), we found that the government had failed to prove a
common, unified scheme between the officials of both houses of
the Pennsylvania General Assembly in offering “no-show”
patronage positions, because while each body did offer such
positions, “there was a dearth of evidence presented that could
link the relevant activities of the two legislative bodies.” Id. at
37; see also Chandler, 388 F.3d at 811-12 (“In this case, there
was no such interdependence of the spokes. The combined
efforts of the spokes were not required to insure the success of
the venture. No spoke depended upon, was aided by, or had any
interest in the success of the others. Each spoke acted
independently and was an end unto itself. The actions of one
spoke did not facilitate the endeavors of other coconspirators or
the venture as a whole.” (footnote omitted)).

        Based on these principles, we conclude that there was an
insufficient degree of interdependence between Knight and
Holck and Umbrell. While White and Kemp steered business to
Knight’s company RPC, this did not benefit Holck and Umbrell;
it only benefitted Knight (and perhaps White). Nor did this
arrangement cement White’s hold on Kemp; if anything, it
indebted White to Kemp, which again was of no use to Holck
and Umbrell. Thus, it is difficult to conceive of how Knight’s

                                51
activities and those of Holck and Umbrell were interdependent
or mutually supportive.

       Hawkins’s case is somewhat closer, because it is at least
arguable that Hawkins’s assistance to White in tendering bribes
to Kemp inadvertently benefitted Holck and Umbrell by
increasing White’s power over Kemp. Nevertheless, we
conclude that this degree of interdependency is too attenuated
and incidental to establish that Holck and Umbrell and Hawkins
joined the same conspiracy. The evidence here, as in Kotteakos
and Smith, demonstrates that Holck and Umbrell’s transactions
were able to proceed without any reliance on Hawkins, and vice
versa. Holck and Umbrell, through cultivating a relationship
with White and providing loans to Kemp, induced Kemp to grant
them favorable treatment. Hawkins also sought favors from
Kemp, and worked with White to coax those favors. Neither of
these sets of transactions was contingent upon the other.
Accordingly, we conclude that Holck and Umbrell and Hawkins
were not interdependent.

       The government’s other arguments lack merit. For
instance, the government claims that the conspirators overlapped
because “White and Kemp, the core conspirators, dealt with
every one of the coconspirators, including Holck and Umbrell,
both individually and together.” However, this could be said for
any hub-and-spokes style conspiracy; Kotteakos and its progeny
make clear that there must be overlap among the spokes, not just
between the hub and the various spokes. Further, it is of no
moment that the hub of this conspiracy involved two individuals
instead of one. Smith recognized that the inquiry must focus not
on the number of individuals who make up the hub, but on the
character of the agreements between the spokes. See 82 F.3d at
1272. Thus, we conclude that appellants are correct that there
was a variance between the conduct charged and proved.

             2.     Substantial Prejudice

       We will only vacate Holck’s and Umbrell’s convictions,
however, if they can show that the variance prejudiced their
substantial rights. See United States v. Padilla, 982 F.2d 110,
115 (3d Cir. 1992) (stating “assuming arguendo that Padilla has

                               52
demonstrated a variance, he must also show prejudice to a
substantial right”); Perez, 280 F.3d at 345 (same). The rule
against variances serves at least three purposes. These purposes
also illustrate why this rule contains a prejudice requirement.
First, “the rule protects the right of each defendant ‘not to be
tried en masse for the conglomeration of distinct and separate
offenses committed by others.’” United States v. Schurr, 775
F.2d 549, 553 (3d Cir. 1985) (quoting Kotteakos, 328 U.S. at
775). The idea here is that the jury should not be permitted to
transfer “‘guilt from one alleged co-schemer to another.’”
Perez, 280 F.3d at 346 (quoting United States v. Barr, 963 F.2d
641, 648 (3d Cir. 1992)). Closely related to guilt transference is
the possibility of evidence spillover. United States v. Trainor,
477 F.3d 24, 36 n.21 (1st Cir. 2007) (stating that “the spillover
concern is addressed to whether incriminating evidence against
co-defendants who were involved in separate conspiracies
affected the jury’s consideration of the evidence against the
defendant”). Second, the rule ensures that a defendant has
adequate notice of the charges being brought against him. Perez,
280 F.3d at 345. Third, the rule “rests on a principle akin to
double jeopardy, for the rule helps to minimize the danger that
the defendant may be prosecuted a second time for the same
offense.” Schurr, 775 F.2d at 554 (internal quotation marks
omitted). The third purpose is not at issue in this case, and the
“notice” purpose has not been violated because Holck and
Umbrell were aware from the indictment as to their role in the
conspiracy, even if this conspiracy had been solely between
them and the White/Kemp hub. There is no reasonable argument
that Holck and Umbrell were not aware of the nature of the
charges brought against them.

       Here, Holck and Umbrell have failed to show that the
variance prejudiced their substantial rights. They argue that they
were prejudiced because a great deal of evidence concerning
“seamy explicit . . . quid pro quo trades” between White and
Kemp were introduced against them. According to Holck and
Umbrell, “these damning conversations had nothing to do with
[them].” However, as the government notes, this evidence was
admissible against Holck and Umbrell because, as they concede,
they joined a conspiracy with White and Kemp. See, e.g.,
United States v. Kushner, 305 F.3d 194, 198 (3d Cir. 2002)

                               53
(explaining that “[u]nder the law of conspiracy, a defendant is
liable for his own and his co-conspirators’ acts for as long as the
conspiracy continues”). This conspiracy involved White’s
bribing Kemp in order to control his decision-making and direct
city business to favored companies – including Commerce.
Thus, evidence concerning White and Kemp’s relationship was
relevant to Holck and Umbrell to explain White’s power over
Kemp, which worked in Holck and Umbrell’s favor.
Accordingly, Holck and Umbrell’s argument on this point lacks
merit.

       Further, as the government explains, it rigorously
segmented its proofs and “never suggested in any way that any
piece of evidence related to Hawkins and Knight was relevant to
establish Holck and Umbrell’s participation in the conspiracy.”
This Court has specifically found, in a discussion of variance, no
prejudice because, inter alia, “the presentation against the
defendants here proceeded seriatim.” Padilla, 982 F.2d at 116.
We explained that the presentation of evidence in this manner
minimized the risk of evidence spillover from the separate
defendants. Id.; see also Perez, 280 F.3d at 347; Greenidge,
2007 WL 2050764. The same rationale applies here.

        Also militating against a finding of prejudice is
Kotteakos’s explanation that the danger of prejudice increases
along with the number of conspiracies and individuals that make
up the wrongly charged single conspiracy. As the Court stated,
“[o]bviously the burden of defense to a defendant, connected
with one or a few of so many distinct transactions, is vastly
different not only in preparation for trial, but also in looking out
for and securing safeguard against evidence affecting other
defendants.” Id. at 766-67. The Court distinguished the
conspiracy in that case, which involved eight different
conspiracies encompassing between 13 and 32 individuals and
did prejudice the defendant, from the case of Berger v. United
States, 295 U.S. 78 (1935), where two conspiracies involving
four individuals were proved and did not prejudice the
defendant. Id. at 766. This case is more similar to Berger, as
there were five alleged conspirators that make up three distinct
conspiracies. Thus, there is little danger that prejudice
inevitably occurred based on the sheer number of defendants and

                                54
conspiracies.

        Accordingly, while Holck and Umbrell have shown that
there was a variance between the charge in the indictment and
the evidence adduced at trial, they have failed to demonstrate
that they were prejudiced by the variance.

       D.       Hawkins’s Wire Fraud Conviction

       La-Van Hawkins challenges the sufficiency of the
evidence supporting his conviction for aiding and abetting wire
fraud, which related to his transmitting the second $5,000 to
Kemp. Hawkins argues that there may have been sufficient
evidence to show that he intended to aid and abet some sort of
criminal activity, but that the government failed to present
evidence demonstrating that he intended to aid and abet the
specific crime of honest services fraud. Again, we will “view
the evidence in the light most favorable to the Government and
sustain the verdict if any rational juror could have found the
elements of the crime beyond a reasonable doubt.” Cartwright,
359 F.3d at 286 (internal quotation marks omitted).

       Hawkins’s argument is based on the general precept that
in order to convict a defendant of aiding and abetting, the
government must prove that “the defendant charged with aiding
and abetting that crime knew of the commission of the
substantive offense and acted with the intent to facilitate it.”
United States v. Dixon, 658 F.2d 181, 189 n.17 (3d Cir. 1981).
We applied this principle in United States v. Wexler, 838 F.2d 88
(3d Cir. 1988), where we held that the government had presented
insufficient evidence to sustain the defendant’s conviction for
aiding and abetting possession by others with intent to distribute
hashish. Id. at 90. While the government had presented
evidence that would have allowed a jury to find that the
defendant was involved in an operation with two other men that
involved transporting cargo in a truck, that the defendant served
as a lookout as the other defendants moved the truck, and that
the truck was loaded with hashish, id. at 91, we concluded that
the government had failed to present enough evidence that the
defendant knew that the truck held drugs, id. at 92. We
explained that because the government had failed to show that

                               55
the defendant “had knowledge of the hashish,” it failed to prove
that the defendant purposely aided and abetted the specific crime
with which he was charged. Id. We concluded that the evidence
presented was just as consistent with the crime of transporting
stolen goods – an entirely different crime. Id.

        In the instant case, however, the government presented
sufficient evidence for the jury to conclude that Hawkins
intended to aid and abet honest services fraud. The government
demonstrated that Hawkins knew that Kemp held public office
in Philadelphia and that Hawkins knew that White was a
politically connected Philadelphia lawyer. Moreover, the
government showed that Hawkins had no reason to provide
money to Kemp, and that he actually relayed the money to Kemp
at White’s behest after White provided him with a $5,000 check.
The government also presented evidence that Hawkins filled out
the entire check except for the payee line, although he did intend
for the money to go to Kemp, as demonstrated by the subsequent
wire transfer. This evidence all supports the jury’s conclusion
that Hawkins intended to aid and abet White’s corruption of
Kemp. Hawkins argues that this situation is just as consistent
with drug conspiracy, money laundering, or tax fraud; however,
the government’s theory specifically accounts for Kemp’s
position as a public official in a way that Hawkins’s other
proposed crimes do not, which differentiates this case from
Wexler. As we have explained, “[t]here is no requirement . . .
that the inference drawn by the jury be the only inference
possible or that the government’s evidence foreclose every
possible innocent explanation.” United States v. Iafelice, 978
F.2d 92, 97 n.3 (3d Cir. 1992). Thus, we reject Hawkins’s
argument and will affirm his conviction for aiding and abetting
honest services wire fraud.

       E.     Hawkins’s Perjury Convictions

       Hawkins next challenges the sufficiency of the evidence
undergirding his three perjury convictions under 18 U.S.C. §
1623, which prohibits “knowingly mak[ing] any false material
declaration” under oath before a grand jury. For each perjury
conviction, Hawkins contends that the government failed to
prove that his relevant testimony before the grand jury was

                               56
untrue. We will uphold the verdict if a reasonable jury could
have found the elements of the crime beyond a reasonable doubt.
Dent, 149 F.3d at 187. The government may prove guilt “via
circumstantial evidence.” United States v. Serafini, 233 F.3d
758, 770 (3d Cir. 2000); see also 18 U.S.C. § 1623(e) (“Proof
beyond a reasonable doubt under this section is sufficient for
conviction. It shall not be necessary that such proof be made by
any particular number of witnesses or by documentary or other
type of evidence.”); United States v. Smith, 538 F.2d 159, 163
(7th Cir. 1976) (“Although no direct evidence of perjury was
produced, none was required.”).

         We first reject Hawkins’s argument that the government
presented insufficient evidence to prove the falsity of his
testimony that he provided the first $5,000 check to Kemp as a
wedding present on White’s instructions. As the government
argued, the story that Hawkins presented is unlikely on its face:
it is difficult to understand why Hawkins would agree to give a
$5,000 wedding gift to someone he barely knew. Further, the
government presented evidence that Kemp had already been
married for 20 months by the time that Hawkins wrote this
check. While it is true, as Hawkins responds, that that could
mean only that White lied to Hawkins, it nevertheless places
Hawkins’s account in further doubt. Additionally, and vitally,
the government demonstrated that Hawkins testified falsely
about the details surrounding this payment. According to
Hawkins’s grand jury testimony, White and Kemp were in
Detroit for Kemp’s bachelor party, and during that trip, dropped
by Hawkins’s office. While there, Hawkins testified, White
asked Hawkins to give Kemp a check as a wedding present.
However, the government showed that Kemp was not actually in
Detroit at the time. This contradiction could have allowed the
jury to draw two inferences. First, the jury could have
concluded that Hawkins lied when he said that Kemp’s bachelor
party was occurring, which makes the wedding present
explanation less plausible. Second, if Kemp was not in Detroit
at all, it would be extremely unlikely that White would request a
wedding present for him. Moreover, while Hawkins testified
that the check was never cashed, it was. We conclude that this
series of contradictions and implausibilities are sufficient to
sustain the jury’s verdict on this count.

                               57
        We are similarly unpersuaded by Hawkins’s argument
that the government failed to prove the falsity of his grand jury
testimony in which he stated that he supplied the second $5,000
check to White intending for White to convey it to a coalition of
African-American newspapers. Most damaging to Hawkins’s
testimony is the fact that after this check bounced twice,
Hawkins wired the $5,000 directly to Kemp’s bank account.
This is powerful evidence that Hawkins intended for the $5,000
to reach Kemp – not a newspaper association. While this fact
alone is sufficient to sustain the conviction, we also note that the
details that Hawkins provided further undermine the veracity of
the story. For instance, the government demonstrated that
Hawkins had met with the group two years before writing the
check, making his sudden beneficence unusual. Thus, we will
affirm the jury’s verdict on this count.

        We also make short shrift of Hawkins’s claim that the
government proffered insufficient evidence to prove the falsity
of his testimony regarding his meeting with Khan, in which he
stated that he had not specifically asked White to bring Kemp to
the meeting, although he had asked, on behalf of Khan, for the
attendance of someone who could discuss property opportunities
in Philadelphia. Hawkins’s testimony is flatly contradicted by
the recorded telephone conversation in which Hawkins
specifically asked White to bring “Corey” to the meeting in
order to “keep [Khan] in the hole” by convincing Khan that
Hawkins was “gonna be gettin’ 20 million.” Moreover, Khan
testified that he never intended to enter the Philadelphia market
and did not ask Hawkins to introduce him to anyone. This
evidence was plainly sufficient to permit the jury to conclude
that Hawkins’s grand jury testimony was false on this matter.

       F.     Hawkins’s Evidentiary Challenges

      Hawkins next challenges a string of the District Court’s
evidentiary rulings. First, he argues that the evidence the
government presented that mentioned Al Sharpton should have
been excluded. For instance, in the government’s opening
statement it stated:

       Where is a source of money? La-Van Hawkins is

                                 58
       looking for big public pension funds, and to get
       access to the money in big public pension funds Mr.
       Hawkins knows you need to have access to public
       officials. You will hear that is exactly what La-Van
       Hawkins tries to do. He tries to do it through
       Reverend Al Sharpton in the city of New York. In
       Philadelphia, he tries to do it through Ron White. . .
       .
(App. at 1527.) Hawkins argues that this and all subsequent
references to Sharpton were irrelevant and thus inadmissible
under Fed. R. Evid. 401. Alternatively, Hawkins argues that the
evidence should have been excluded under Fed. R. Evid. 403
because any probative value that the evidence did have was
“substantially outweighed by the danger of unfair prejudice.”
“We review a district court’s decision to admit or exclude
evidence for abuse of discretion, and such discretion is construed
especially broadly in the context of Rule 403.” United States v.
Mathis, 264 F.3d 321, 326-27 (3d Cir. 2001).

        Contrary to Hawkins’s assertion, the evidence involving
Sharpton did have a “tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
Fed. R. Evid. 401. As we have recognized, this standard is “not
high.” United States v. Steele, 685 F.2d 793, 808 (3d Cir. 1982)
(internal quotation marks omitted). At bottom, the government
aimed to prove that Hawkins joined a conspiracy to corrupt
Kemp. The evidence concerning Hawkins’s efforts to cultivate a
relationship with Sharpton emphasized Hawkins’s interest in
fostering ties with politically active individuals, and was thus
probative as to Hawkins’s intent in working with White and
directing money to Kemp. The evidence could have allowed a
jury to conclude that it was less likely that the first payment to
Kemp was casually made at White’s direction, that the second
payment was not intended for Kemp at all, and that Hawkins was
generally indifferent toward Kemp’s position, because the
evidence concerning Sharpton helped show just how
determinedly Hawkins wooed those with political connections
and his willingness to convey money to them. Of course, this
evidence alone does not prove Hawkins’s guilt on any count, but
as the notes to Rule 401 explain, “a brick is not a wall.” Fed. R.

                               59
Evid. 401 advisory committee’s note (internal quotation marks
omitted).

        Moreover, Hawkins has failed to present any authority for
his novel position that Sharpton’s name alone is so prejudicial
that the infrequent references to it substantially outstripped the
probative value of this evidence. Further, the District Court
minimized the possibility of prejudice by explicitly instructing
the jury that: “The government is not alleging anything wrong at
all regarding the efforts of La-Van Hawkins, Ronald White, and
Al Sharpton concerning New York pension funds. There is no
suggestion of illegality as to any recorded conversations you
heard played during the government’s case-in-chief pertaining to
Al Sharpton . . . .” (App. at 10593-94.) Accordingly, we
conclude that the District Court did not abuse its discretion in
admitting the evidence under either Rule 401 or 403.

        Second, Hawkins argues that the testimony of
representatives of Blockbuster, BET, Pizza Hut, and Burger
King, all of whom contradicted claims that Hawkins made
before the grand jury about his great wealth,20 should have been
excluded under Rule 404(b). In order to be admissible under
Fed. R. Evid. 404(b), the evidence of other acts must: “(1) have a
proper evidentiary purpose, (2) be relevant under Rule 402, (3)
satisfy Rule 403 (i.e., not be substantially more prejudicial than


       20
           Specifically, Bradley Himmeger, the Blockbuster
representative, testified that despite Hawkins’s testimony that he
owned 55 Blockbuster Video stores, Hawkins actually owned zero.
H. Van Sinclair, a representative of BET, testified that contrary to
Hawkins’s claim that he was a partner of Bob Johnson in the sale
of BET for $3.5 billion, the two men were not partners and
Hawkins was not involved in the sale. Pizza Hut representative
John Murphy contradicted Hawkins’s claim that he had sold 127
restaurants back to Pizza Hut by testifying that Hawkins had
returned 72 restaurants to Pizza Hut and had actually paid Pizza
Hut $50,000 to take the debt-ridden restaurants off his hands.
Finally, W. Barry Blum, a representative of Burger King, testified
that Hawkins received only $95,000 when he sold restaurants to
Burger King, not, as Hawkins had claimed, $35 million.

                                60
probative), and (4) be accompanied by a limiting instruction,
when requested pursuant to Federal Rule of Evidence 105, that
instructs the jury not to use the evidence for an improper
purpose.” United States v. Cross, 308 F.3d 308, 320-21 (3d Cir.
2002) (footnote omitted). Hawkins argues that this evidence was
offered for an improper purpose and that its probative value was
substantially outweighed by the danger of unfair prejudice. We
review the District Court’s judgments for abuse of discretion.
United States v. Mastrangelo, 172 F.3d 288, 295 (3d Cir. 1999).
As explained below, we conclude that the District Court acted
within its discretion.

        Hawkins first argues that this evidence was not presented
for a proper purpose, because it was offered to persuade the jury
that because Hawkins had lied to the grand jury on other
occasions, he must have been guilty of the perjury charges. To
show a proper purpose, “the government must ‘clearly articulate
how that evidence fits into a chain of logical inferences’ without
adverting to a mere propensity to commit crime now based on
the commission of crime then.” Id. (quoting United States v.
Sampson, 980 F.2d 883, 887 (3d Cir. 1992)).

        We are unpersuaded by Hawkins’s argument on this
point. The government argues that it introduced this evidence to
demonstrate Hawkins’s consciousness of his guilt of the
underlying charges, which we have recognized is a proper
purpose under Rule 404(b). See United States v. Gatto, 995 F.2d
449, 455 (3d Cir. 1993) (explaining that testimony was
“admissible under Rule 404(b) . . . to show consciousness of
guilt”); see also United States v. Rajewski, 526 F.2d 149, 158
(7th Cir. 1975) (“It is well-settled that untrue exculpatory
statements may be considered as circumstantial evidence of the
defendant’s consciousness of guilt.”). Throughout Hawkins’s
grand jury testimony, Hawkins defended his conduct essentially
by arguing that he was too wealthy to deign to involve himself in
the paltry corruption alleged in the case. For instance, after
being asked whether Hawkins was concerned that providing
money to Kemp constituted money laundering, Hawkins
responded: “Well, no ma’am, for the simple reason money
laundering is – first of all, because I had businesses all my
money came from. I made all my money from legitimate

                                61
sources. As a matter of fact I sold Checkers for 50 million
dollars and returned Burger King for 35 million dollars. So I’ve
never had any reason to launder money.” (App. at 14815.) This
response is illustrative of the general tenor of Hawkins’s grand
jury testimony, in which he sought to equate wealth with
innocence.21 Thus, the government’s evidence disproving these
claims of vast wealth effectively impeached what Hawkins
presented as an (unusual form of) alibi.

       We also agree with the government that the District Court
did not abuse its discretion in determining that the evidence was
admissible under Rule 403. See United States v. Jemal, 26 F.3d
1267, 1272 (3d Cir. 1994) (“If judicial self-restraint is ever
desirable, it is when a Rule 403 analysis of a trial court is
reviewed by an appellate tribunal.” (internal quotation marks
omitted)). Given that we have frequently approved district
courts’ decisions to admit previous drug convictions against
defendants in subsequent drug prosecutions, see Sampson, 980
F.2d at 887 (“There is no question that, given a proper purpose


      21
          Similarly, after a grand juror asked Hawkins whether,
during the meeting with Khan, White, and Kemp, he discussed
using the Philadelphia pension funds to finance one of his
endeavors, Hawkins immediately harkened to his wealth. He
answered:
       No. As a matter of fact to be perfectly honest with
       you my partner is Bob Johnson. We own BET for
       3.5 billion dollars. So back in 2002 we sold it as a
       matter of fact to Viacom. So you know Bob Johnson
       is a partner of mines, Ted Turner has been a partner
       of mines. So we’ve got Leonard Greenwood. We
       got five different companies that because I’ve been
       so success[ful] in the fast food business that I have
       partners that raise eight, nine billion dollars in
       private placement that’s what we’re going to do. We
       were putting, 250 million dollars was going to be
       used in equity and the rest of the money was going
       to be raised by Merrill Lynch. They’re going to
       handle the debt.
(App. at 14822-23.)

                               62
and reasoning, drug convictions are admissible in a trial where
the defendant is charged with a drug offense.”), it cannot be, as
Hawkins argues, that the similarity between his other conduct
and charged conduct necessarily causes unfair prejudice.
Because evidence of Hawkins’s consciousness of guilt was of
high probative value to the government’s case, Hawkins faces a
high hurdle in showing that the danger of unfair prejudice
substantially outweighed the probative value. See Cross, 308
F.3d at 325 (“‘Rule 403 . . . does not generally require the
government to sanitize its case, to deflate its witnesses’
testimony, or to tell its story in a monotone.’” (quoting United
States v. Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998)).
While Hawkins attempts to surmount this hurdle by arguing that
the government presented this evidence to convince the jury that
Hawkins had committed crimes because of financial distress, we
are not persuaded. See, e.g., United States ex rel. Mertz v. State
of N.J., 423 F.2d 537, 541-42 (3d Cir. 1970) (recognizing this
danger). There is a substantial difference between financial
distress and not reaping huge profits from transactions, and the
District Court took care to protect Hawkins from the evidence of
the former by rejecting the government’s attempt to impeach
Hawkins’s statement that he was a multi-millionaire.22 We thus
conclude that the District Court did not abuse its discretion in
determining that the evidence was admissible under Rules 403
and 404.23


       22
         The District Court also limited the extent that financial
information could be admitted by requiring that the evidence be
presented succinctly and without confusing the jury.
       23
          We recognize that several courts of appeals have
concluded that evidence of consciousness of guilt is intrinsic to the
charged offense, and thus outside Rule 404. For instance, in
United States v. Simmons, 470 F.3d 1115, 1124-25 (5th Cir. 2006),
the Fifth Circuit permitted the government to introduce a
defendant’s prior testimony that he had given in a state trial
concerning an alleged sexual assault for the purpose of proving,
through other evidence, that those statements were false. Id. at
1125. The court explained:
      Similarly, Simmons’ state-court testimony was not

                                 63
       Next, Hawkins argues that the District Court erred by
admitting a letter found in Kemp’s home as a co-conspirator
statement under Fed. R. Evid. 801(d)(2)(E). The letter, which
was dated March 20, 2002, and was addressed from Kemp to
Hawkins, stated: “Let me take this opportunity to thank you for
selecting me to serve in the capacity of a financial consultant for
your company. I look forward to working and sharing my
expertise with you in the very near future. Please feel free to
contact me at your convenience.” (App. at 13944.) In order to
admit a statement under Rule 801(d)(2)(E), a district court must
find, by a preponderance of the evidence: “(1) that a conspiracy
existed; (2) the declarant and the party against whom the
statement is offered were members of the conspiracy; (3) the


        inadmissible under Rule 404(b) because it did not
        constitute a separate extrinsic bad act. The prior
        testimony was relevant to issues other than
        Simmons’ bad character. It was introduced not to
        show Simmons lied in the past, was a bad person,
        and, therefore, must have sexually assaulted
        Robinson; rather, it was introduced to show his
        consciousness of guilt and that he had lied in order to
        fabricate an alibi.
Id.; see also United States v. Frost, 234 F.3d 1023, 1025 (8th Cir.
2000) (“Frost’s testimony is direct evidence of fraudulent intent
and consciousness of guilt. It does not relate to ‘other acts,’ but
rather constitutes evidence intrinsic to the overall scheme. Rule
404 is therefore inapplicable.”); United States v. Ramirez-Jiminez,
967 F.2d 1321, 1327 (9th Cir. 1992) (explaining evidence that
defendant had lied to government agents when stopped during
crime was “probative of his consciousness that his conduct was
illegal” and therefore Rule 404(b) was inapplicable).
        However, we have previously approved the admission of
evidence of consciousness of guilt under Rule 404. See Gatto, 995
F.2d at 455 (explaining that testimony was “admissible under Rule
404(b) . . . to show consciousness of guilt”). We thus follow our
precedent and examine this issue under Rule 404. Given that we
have concluded that consciousness of guilt is a proper purpose
under Rule 404, however, our analysis converges with that used by
the cases that hold Rule 404 inapplicable.

                                64
statement was made in the course of the conspiracy; and (4) the
statement was made in furtherance of the conspiracy.” United
States v. McGlory, 968 F.2d 309, 333 (3d Cir. 1992). We
exercise plenary review over these findings. Id.

        We agree with the District Court that this letter was
admissible against Hawkins as the statement of an alleged co-
conspirator. While Hawkins argues that the government failed
to present any evidence besides this letter demonstrating that
Hawkins and Kemp were members of a conspiracy, that is
simply not true: just ten days before Kemp wrote this letter, he
had accepted a $5,000 check from Hawkins. The transfer of
money from Hawkins to Kemp could certainly have formed part
of the alleged conspiracy. It does not matter whether or not
Kemp actually mailed the letter to Hawkins, because its mere
existence provided evidence that Kemp knew of the
inappropriate nature of the $5,000 check from Hawkins.
Accordingly, we will affirm the District Court’s admission of the
letter.

       Finally, Hawkins argues that the District Court erred by
admitting evidence concerning Kemp’s actual wedding date,
arguing that this evidence is inadmissible under Rules 401 and
403. According to Hawkins, this evidence was irrelevant
because he testified before the grand jury only that White told
him that Kemp’s wedding had recently occurred, not that it
actually had. As noted, “[w]e review a district court’s decision
to admit or exclude evidence for abuse of discretion, and such
discretion is construed especially broadly in the context of Rule
403.” Mathis, 264 F.3d at 326-27.

        Again, we conclude that the District Court acted within its
discretion in admitting this evidence. As we have noted, Rule
401 does not set a high standard. See Steele, 685 F.2d at 808;
see also Sampson, 980 F.2d at 888 (stating that “the burden [on
the proponent of the evidence] is not onerous”). Just as evidence
that Kemp had recently been married would have made it more
probable that White had actually made this statement to
Hawkins, the fact that Kemp had been married so long ago made
it less probable. Moreover, Hawkins has failed to explain why
this evidence was unfairly prejudicial to him. He was free to

                                65
present his explanation that notwithstanding the date of Kemp’s
actual marriage, White had said that the $5,000 was for a
wedding present, and he did so in his closing argument.
Accordingly, we perceive no reason to conclude that the District
Court abused its “very substantial discretion” in admitting this
evidence. United States v. Ali, --- F.3d ----, 2007 WL 2049008
(3d Cir. 2007) (internal quotation marks omitted).

       G.     Hawkins’s Jury Instructions Challenge

        Hawkins also challenges the jury instructions regarding
his conviction for aiding and abetting wire fraud, arguing that
the District Court failed to explain to the jury that it was required
to find Hawkins’s culpable participation in the specific scheme
charged in the indictment. Because Hawkins did not raise this
challenge until after the close of trial, we review for plain error.
Fed. R. Crim. P. 30(d). Under the plain error standard, we will
reverse the District Court only upon finding “(1) an error; (2)
that is plain; and (3) that affected substantial rights.” United
States v. Dobson, 419 F.3d 231, 236 (3d Cir. 2005). Here, we
find no error.

       Hawkins argues that the jury instructions failed to
conform to Dobson’s requirement that the defendant culpably
participate in the illicit enterprise charged in the indictment. Id.
at 237. In Dobson, the defendant, Dobson, was charged with
mail fraud (among other things). Id. at 234. Dobson had
worked as a salesperson for Universal Liquidators (UL), which
claimed to be in the business of locating and reselling surplus
merchandise. Id. Dobson’s role was to convince individuals to
pay approximately $5,000 to UL for access to this merchandise,
which the individuals could then sell to the public at a profit. Id.
However, UL was a hoax – it was not actually able to connect
individuals with deeply discounted merchandise. Id. Further,
Dobson, while marketing this “opportunity,” made
misrepresentations of her own, such as claiming that by selling
merchandise acquired through UL she had made enough money
to purchase a horse ranch. Id. at 235.

       We found that the District Court had committed plain
error because its jury instructions failed to “require[] a

                                 66
determination of whether Dobson knowingly participated in
UL’s broader scheme to defraud.” Id. at 238. The instructions
merely called upon the jury to determine “whether the defendant
knowingly devised or participated in a scheme to defraud.” Id.
(emphasis added). We explained that the “case present[ed] two
layers of potential fraud or misrepresentation that do not
necessarily interconnect: (1) Dobson’s dubious sales
presentations; and (2) the fraudulent UL scheme charged in the
Indictment.” Id. While only the second kind of fraud was
charged in the indictment, the jury instructions permitted the jury
to convict upon finding either kind. Id. Accordingly, we held
that the instructions had “omitted the prosecution’s obligation to
show that Dobson knowingly devised or participated in the
broader UL scheme as charged in the Indictment.” Id.

        At bottom, Dobson simply ensures that the jury
instructions require the jury to find that the defendant culpably
participated in the particular “illicit enterprise” that was charged
in the indictment. Id. at 237. We have no doubt that the jury
instructions in this case did so. The indictment charged Hawkins
with aiding and abetting honest services wire fraud.
Accordingly, the relevant scheme was the “scheme to defraud
the City of Philadelphia and its citizens of the right to defendant
COREY KEMP’s honest services.” (App. at 581.) The District
Court defined honest services fraud extensively, and then
referred the jurors to the verdict sheet, which, as relevant here,
charged Hawkins with aiding and abetting honest services wire
fraud. The Court explained that:

       [O]nly a public official owes a duty of honest
       services to the people he serves. Thus, of the
       defendants in this case, only Kemp is a public
       official. Each of the other defendants, who are
       private citizens, by himself or herself may not
       commit a substantive offense of honest services
       fraud as charged in the indictment.
               However, you may nevertheless find one or
       more of the other defendants guilty of honest
       services fraud, if you find beyond a reasonable doubt
       that such a defendant aided and abetted; that is,
       assisted a public official who was committing this

                                67
      crime to commit this crime.

(App. at 9652.)

      The District Court went on to instruct the jury that:
      Before a defendant may be held responsible for
      aiding and abetting others in the commission of a
      crime, it is necessary that the government prove
      beyond a reasonable doubt that the defendant
      knowingly and deliberately associated himself or
      herself in some way with the crime charged and
      participated in it with the intent to commit the crime.
             In order to be found guilty of aiding and
      abetting the commission of a crime, the government
      must prove beyond a reasonable doubt that the
      defendant:
                     First, knew that the crime charged was
      to be committed or was being committed.
                     Second, knowingly did some act for
      the purpose of aiding the commission of that crime.
                     And third, acted with the intention of
      causing the crime charged to be committed.

(App. at 9653.)

        These instructions contained the direct link between
Hawkins’s actions and the specific scheme that was charged in
the indictment – the scheme to deprive the public of Kemp’s
honest services – that was lacking in Dobson. The instructions
left no danger that Hawkins would be convicted for aiding and
abetting some other scheme. Accordingly, we conclude that the
instructions are consistent with Dobson’s teaching, and we reject
Hawkins’s argument.

      H.     District Court’s Questioning the Jury and
             Discharging Juror 11

             1.     Individual Questioning

      All appellants argue vigorously that the District Court
should not have questioned the jurors about Juror 11's alleged

                                68
misconduct. We review “a trial court’s response to allegations
of juror misconduct for abuse of discretion.” United States v.
Boone, 458 F.3d 321, 326 (3d Cir. 2006). Here, we conclude
that the District Court acted within its discretion when it
individually questioned the jurors.

        We have recently had occasion to set forth the applicable
legal standard governing the district courts’ latitude to question
jurors during deliberations about allegations of misconduct. In
Boone, we recognized that “[i]t is beyond question that the
secrecy of deliberations is critical to the success of the jury
system.” Id. at 329. At the same time, we emphasized that “[i]t
is also manifest, however, that a juror who refuses to deliberate
or who commits jury nullification violates the sworn jury oath
and prevents the jury from fulfilling its constitutional role.” Id.
Attempting to reconcile these disparate values, we held that
“where substantial evidence of jury misconduct – including
credible allegations of jury nullification or of a refusal to
deliberate – arises during deliberations, a district court may,
within its sound discretion, investigate the allegations through
juror questioning or other appropriate means.” Id. We stressed
that a district court, “based on its unique perspective at the
scene, is in a far superior position than this Court to
appropriately consider allegations of juror misconduct, both
during trial and during deliberations.” Id.

       Applying that legal principle in Boone, we affirmed the
District Court’s decision to question a juror after the Court
received a note stating:

       We have some serious concern about one of our
       fellow jurors. He has told . . . all of us several times
       that his best friend is a cop, and he has several guns,
       some unregistered and being stored at his friend’s
       house. This leads us to believe that he lied on his
       initial questionnaire for jury selection. Also, he
       refuses to discuss certain [counts] because he had his
       mind made up before we started deliberating. He has
       said he does not believe anything the police said and
       thinks everyone is lying. We feel this seriously
       affects our deliberations. Our votes are 11 to [ ] 1 on

                                 69
       four [counts] and we have agreed on four. The juror
       in question has stated they will not change their mind
       [sic] and does not want to work at any evidence or
       discuss any testimony. We seem to be at an impasse.
       Please help us. Thank you, [jury foreperson].

Id. at 324 (alterations in original). The appellant argued that this
note presented insufficient justification for the District Court to
question the juror. We rejected that argument, explaining that
“[a]lthough this evidence was far from unambiguous, there was a
sufficient indication that Juror X was violating his oath to
provide discretion to the trial judge to investigate further.” Id. at
330.

       Accordingly, the legal standard is clear: a district court
may investigate allegations of juror misconduct when presented
with “substantial evidence” of that misconduct. All appellants
protest that the District Court here was not presented with
substantial evidence of misconduct.

       The first individualized investigation was precipitated by
two notes: one accused a juror of being biased, while another
accused a juror of refusing to consider evidence and deliberate.
This evidence is at least as strong as that presented in Boone,
and, recognizing that the District Court was in the best position
to understand and respond to the exigencies of the situation, we
conclude that those notes amounted to “substantial evidence of
jury misconduct.”

       The District Court’s second voir dire was also an
acceptable use of its discretion. It is true that the note that
prompted this investigation was ambiguous: a court could have
read the note either to state that further deliberations would be
useless because the jurors simply could not agree or because one
juror was violating her oath by failing to participate. While the
note alone may have been insufficient to justify questioning the
jurors a second time, the District Court was not operating from a
blank slate. The District Court had previously fielded
complaints from jurors – both by note and during the first
questioning – that Juror 11 was failing to deliberate. Thus, the
District Court certainly could have interpreted this note to allege

                                 70
further misconduct, which, taken in tandem with previous
allegations, was sufficient to permit the District Court to exercise
its discretion to investigate further. See Boone, 458 F.3d at 330
(stating that “[t]he fact that a different judge may have chosen
not to conduct a[n] investigation is irrelevant”). Accordingly,
we conclude that the District Court acted within its discretion in
choosing to conduct a second session of individual questioning.

        Finally, the third investigation was also appropriate. This
series of questioning was prompted by the District Court’s
receiving two notes: the first claimed that a juror was biased, and
the second exhorted the judge to question the jurors. A specific
allegation of bias, made after the District Court had exhaustively
instructed the jurors on proper and improper bias, provided
substantial evidence of juror misconduct.

        While it may be more intrusive to question each juror
individually, as occurred here, than only the subject of the
allegation of misconduct, as occurred in Boone, we nevertheless
conclude that the District Court acted well within its discretion
when it used the more-expansive mode of investigation. We
have recognized that there are times in which individual
questioning is the optimal way in which to root out misconduct,
see United States v. Resko, 3 F.3d 684, 686 (3d Cir. 1993)
(holding that district court’s use of questionnaire, instead of, for
instance, individualized voir dire, was “inadequate to enable the
court to fulfill its responsibility of providing an appropriate
cautionary instruction and of determining whether prejudice
resulted from the jury misconduct”); United States v. Console,
13 F.3d 641, 667 (3d Cir. 1993) (calling individual voir dire the
“method of inquiry [that] we have preferred”), and that the
District Court must utilize procedures that will “provide a
reasonable assurance for the discovery of prejudice,” Martin v.
Warden, Huntingdon State Corr. Inst., 653 F.2d 799, 807 (3d
Cir. 1981). Crucially, the District Court took care to limit its
questions to appropriate matters that did not touch on the merits
of the jury’s deliberation, and expressly informed each juror on
multiple occasions that he or she should not reveal the substance
of the deliberations. See United States v. Edwards, 303 F.3d
606, 634 n.16 (5th Cir. 2002) (explaining that “the district court
was very careful; it insisted that the jurors refrain from

                                 71
describing the content and method of their deliberations”). As
we have recognized, the District Court was in the best position to
evaluate what kind of investigation the circumstances demanded,
see Boone, 458 F.3d at 329; here, its decision was reasonable.
Accordingly, we conclude that the District Court acted within its
discretion to question the jurors on all three occasions.

              2.     Discharging Juror 11

       All appellants also assert that the District Court erred by
dismissing Juror 11. We review the dismissal of a juror for
cause for abuse of discretion. See United States v. Gambino, 788
F.2d 938, 949 (3d Cir. 1986). Here, the District Court acted
within its discretion in discharging Juror 11.

        While it is undisputed that in certain circumstances,
district courts may discharge a juror for cause during
deliberations, see Fed. R. Crim. P. 23(b), we have yet to
enunciate the appropriate standard.24 Any standard must
accommodate two clashing interests. First, it is clear that “a
court may not dismiss a juror during deliberations if the request
for discharge stems from doubts the juror harbors about the
sufficiency of the government’s evidence.” United States v.
Brown, 823 F.2d 591, 596 (D.C. Cir. 1987). Any other rule
would eviscerate the right to a unanimous verdict of guilt. See
id. On the other hand, courts agree that a district court has the
authority to dismiss a juror – even during deliberations – if “that
juror refuses to apply the law or to follow the court’s
instructions.” United States v. Abbell, 271 F.3d 1286, 1302
(11th Cir. 2001) (per curiam). That is because “a juror who
refuses to deliberate or who commits jury nullification violates
the sworn jury oath and prevents the jury from fulfilling its
constitutional role.” Boone, 458 F.3d at 329. While the
jurisprudence discussing the discharge of jurors during
deliberations has largely focused on a refusal to deliberate or
jury nullification, its reasoning applies with equal force to claims



       24
         We expressly left this issue open in Boone. See 458 F.3d
at 329 n.4.

                                72
of juror bias.25 Cf. Gov’t of V.I. v. Dowling, 814 F.2d 134, 139
(3d Cir. 1987) (“The trial court’s finding [of whether a juror is
biased] is a finding of ‘historical fact: did a juror swear that he
could set aside any opinion he might hold and decide the case on
the evidence, and should the juror’s protestation of impartiality
have been believed.’” (quoting Patton v. Yount, 467 U.S. 1025,
1036 (1984)).

        Because of the danger that a juror will be discharged
based on that juror’s view of the evidence, courts “apply a tough
legal standard.” Abbell, 271 F.3d at 1302. In Brown, for
instance, the D.C. Circuit held that “if the record evidence
discloses any possibility that the request to discharge stems from
the juror’s view of the sufficiency of the government’s evidence,
the court must deny the request.” 823 F.2d at 596. Similarly, in
United States v. Thomas, 116 F.3d 606 (2d Cir. 1997), the
Second Circuit adopted the “any possibility” standard set forth in
Brown. Id. at 622.

        Subsequently, however, courts have slightly modified that
language. The Ninth Circuit has held that “if the record
evidence discloses any reasonable possibility that the impetus
for a juror’s dismissal stems from the juror’s views on the merits
of the case, the court must not dismiss the juror.” United States
v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999). The court
determined that it was necessary to include the word
“reasonable,” given that “[i]t may be that ‘[a]nything is possible
in a world of quantum mechanics.’” Id. at 1087 n.5 (second
alteration in original) (quoting United States v. Watkins, 983


       25
           We note that in many instances of bias, a district court
will be able to focus on the existence of a particular act that gives
rise to the bias. See, e.g., United States v. Egbuniwe, 969 F.2d 757,
763 (9th Cir. 1992) (source of anti-prosecution bias stemmed from
a particular incident of an alleged “false arrest and rough treatment
of [a juror’s] girlfriend by law enforcement officers”). The rule we
announce today does not apply to the type of bias that does not
require the District Court to investigate a topic that implicates the
secrecy of jury deliberations. See Symington, 195 F.3d at 1087 n.6;
Thomas, 116 F.3d at 621.

                                 73
F.2d 1413, 1424 (7th Cir. 1993) (Easterbrook, J., dissenting)).
Similarly, in Abbell, the Eleventh Circuit held that “a juror
should be excused only when no ‘substantial possibility’ exists
that she is basing her decision on the sufficiency of the
evidence.” 271 F.3d at 1302. The court explained that it meant
for the standard to “be basically a ‘beyond reasonable doubt’
standard,” that it intended district courts to apply the “substantial
possibility” standard, and that it would then review the district
courts’ factual findings for clear error. Id. at 1302-03.

        While there is a slight difference in the standards as
expressed by the D.C. and Second Circuits as compared to the
Ninth and Eleventh Circuits, we believe that the difference is
one of clarification and not disagreement. To the extent that
there is a difference, we believe that the articulation of the Ninth
and Eleventh Circuits is superior. That standard will allow us to
avoid abstract “anything is possible” arguments, provide district
courts with some leeway in handling difficult juror issues, and
protect each party’s right to receive a verdict rendered by a jury
that follows the law. At the same time, the standard is by no
means lax: it corresponds with the burden for establishing guilt
in a criminal trial, so we are confident that it will adequately
ensure that jurors are not discharged simply because they are
unimpressed by the evidence presented.26 We adopt such a high


       26
          The need for such a high standard prior to dismissal
comes from a federal criminal defendant’s Sixth Amendment right
to a unanimous jury verdict. If the Government is able to remove
a holdout juror because of ambiguous allegations of improper
behavior during deliberations, and replace this holdout with a more
amenable juror, then the defendant’s constitutional right to a
unanimous verdict has been violated. Put differently, each juror
must find the defendant guilty beyond a reasonable doubt. We are
convinced that the “beyond a reasonable doubt” standard best
protects a defendant’s constitutional right to a unanimous verdict.
A hypothetical illustrates our concerns. Assume that Juror X is a
holdout. Assume that Juror X wants to vote to acquit the
defendant. If a district court finds, by a mere preponderance of the
evidence, that Juror X’s act of holding out is causally due to bias,
then there is an up to 49% chance that Juror X’s belief in acquittal

                                 74
standard in part because, as a result of our recent decision in
Boone, a district court in the Third Circuit has more leeway to
investigate juror misconduct than in other circuits. See, e.g.,
Symington, 195 F.3d at 1086; Thomas, 116 F.3d at 618-21;
Brown, 823 F.2d at 596. Accordingly, we hold that the district
courts may discharge a juror for bias, failure to deliberate, failure
to follow the district court’s instructions, or jury nullification
when there is no reasonable possibility that the allegations of
misconduct stem from the juror’s view of the evidence.

        Here, the evidence supporting the District Court’s
conclusion is overwhelming. The District Court carefully and
correctly instructed the jurors on the distinction between
permissible and impermissible bias, and during the final voir
dire, ten jurors reported that Juror 11 was improperly biased.27
Significantly, the District Court ruled that Juror 11 was not
credible, and we see no reason to upset that conclusion. See Kirk
v. Raymark Indus., Inc., 61 F.3d 147, 153 (3d Cir. 1995)
(stressing that “the district court should not rely simply on the



is causally traced to Juror X’s belief in the defendant’s innocence.
But if Juror X is removed from the jury, then the defendant loses
out on having a holdout juror who legitimately (i.e., on the merits)
believes that the government has not satisfied its “guilty beyond a
reasonable doubt” standard. The only way to satisfy the
defendant’s constitutional right to a unanimous verdict in the juror
discharge context is to only permit removal when the District Court
finds, beyond a reasonable doubt, that the holdout’s reasons were
not related to the merits of the case.
       27
           We also note that, in this case at least, the final interview
with the jurors controls the inquiry. Even though – among other
complaints – the jurors claimed that Juror 11 was biased before the
first voir dire and immediately after the second, the District Court
never questioned the jury about this until the third voir dire. Thus,
the third voir dire was the first chance for each juror to fully detail
any concerns that he or she had about Juror 11's bias. Further, it
was before the final voir dire that the District Court
comprehensively distinguished between permissible and
impermissible bias.

                                  75
jurors’ subjective assessments of their own impartiality”);
Abbell, 271 F.3d at 1303 (stating that “because the demeanor of
the pertinent juror is important to juror misconduct
determinations, the district court is uniquely situated to make the
credibility determinations that must be made in cases like this
one: where a juror’s motivations and intentions are at issue”).
Even on the sterile record before us, the District Court’s
conclusion is inescapable. Based on what the other jurors
reported, it is simply unbelievable that Juror 11 really stated that
FBI agents were among the most credible witnesses. Such a
statement is so inconsistent with all the other reports that it tends
to prove the opposite: that Juror 11 was indeed biased and
constructed a post hoc story to try to obfuscate that bias.

        In addition to the refrain of allegations of bias, during the
final voir dire eight jurors reported that Juror 11 was refusing to
deliberate and ten jurors reported that Juror 11 was refusing to
discuss the evidence. For instance, Juror 6, Juror 11's staunchest
defender, reported that Juror 11 was deliberating and was not
biased; however, even Juror 6 believed that Juror 11 was
refusing to look at the evidence. A refusal to deliberate or
discuss the evidence may well be a manifestation of underlying
bias: if a juror makes up her mind based on beliefs formed
before the trial began, she would have no reason to discuss the
evidence with other jurors. Here, the vast majority of jurors
concluded that Juror 11 acted inappropriately in those ways, too.
We emphasize that the District Court removed Juror 11 because
of her bias, and we therefore need not address whether the
District Court would have abused its discretion if it removed
Juror 11 on refusal to deliberate grounds rather than due to bias.

        Given that the “reasonable possibility” test we have
adopted is similar to the beyond-a-reasonable-doubt standard,
analogizing this situation to a criminal proceeding is useful. We
have little doubt that if ten or 11 out of 12 witnesses testified
against a defendant, and the defendant testified in a patently
unbelievable manner, the jury could find guilt beyond a
reasonable doubt. Similarly, under the circumstances presented
here, we conclude that the District Court appropriately exercised
its discretion in concluding that there was no reasonable
possibility that the allegations against Juror 11 were based on her

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view of the evidence.

       Our decision comports with the leading cases to consider
the discharge of a juror during deliberations. Those that
reversed the District Court’s decision to discharge involved
much more equivocal evidence of misconduct. For instance, in
Brown, upon questioning a juror who claimed that he was unable
to perform his duty and apply the law, the juror revealed that he
had a problem with “the way [the RICO statute was] written and
the way the evidence has been presented,” and that “[i]f the
evidence was presented in a fashion in which the law is written,
then, maybe, I would be able to discharge my duties.” 823 F.2d
at 592-94. That response, which was uncontradicted on the
record, clearly points to the juror’s view of the evidence.

        Similarly, in Thomas, the jurors presented varying
explanations of the nature of their problem with the other juror.
116 F.3d at 623-24. Five jurors stated that the juror at issue was
unyieldingly in favor of acquitting the defendants, either because
the defendants were “his people,” because the defendants were
“good people,” or because the defendants committed the crime
out of economic necessity. Id. at 611. On the other hand, five
jurors linked the juror at issue’s reticence to convict to his views
about the evidence – one juror stated that the juror was
discussing the evidence, and four others stated that he had found
the evidence insufficient or unreliable. Id. The true basis for the
juror’s feelings was thus unclear, and accordingly, the court
concluded that the district court erred in discharging him. Id. at
624.

        Meanwhile, in Abbell, the Eleventh Circuit affirmed the
district court’s decision to discharge a juror where the court
explained that early on in the process the juror at issue had made
comments about not having to follow the law, and even after the
court gave corrective instructions, the majority of the other
jurors still reported that the other juror would not consider the
evidence or discuss the law. 271 F.3d at 1303-04. The juror at
issue’s “own testimony on her commitment to following the law
was not certain.” Id. at 1304. While only a majority of jurors
stated that the discharged juror was not engaging in
deliberations, id. at 1303-04, the juror’s own statements revealed

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her inability to follow the oath she took as a juror.

        The instant case is much more similar to Abbell than
Brown and Thomas. The District Court carefully and patiently
examined the jurors on multiple occasions to isolate the root of
the allegations of misconduct. After the District Court received
near-unanimous reports that Juror 11 was biased, and after
hearing a manifestly incredible rendition from Juror 11, the
Court discharged Juror 11. The evidence was so overwhelming
that Juror 11 was biased that it would have been “a dereliction of
duty for a judge to remain indifferent.” Thomas, 116 F.3d at
616. Accordingly, we will affirm the District Court’s decision to
discharge Juror 11.

                                IV.

      For the foregoing reasons, we will affirm Kemp’s,
Holck’s, Umbrell’s, Hawkins’s, and Knight’s judgments of
conviction.




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