                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2008

USA v. Abate
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3513




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-3513


                           UNITED STATES OF AMERICA

                                            v.

                                  FRANK G. ABATE,
                                              Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW JERSEY
                            (D.C. Crim. No. 06-cr-00919)
                 District Judge: The Honorable Susan D. Wigenton


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 20, 2008


         Before: BARRY, CHAGARES, Circuit Judges, and RESTANI,* Judge

                          (Opinion Filed: December 11, 2008)


                                       OPINION




*
   Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
BARRY, Circuit Judge

       Appellant Frank G. Abate was convicted of five counts of mail fraud and one

count of obstruction of justice.1 On appeal, he challenges those convictions and the

sentence that was imposed. We will affirm.

                                               I.

       Given that we write solely for the parties, a brief recitation of the facts will suffice.

From 2002 to 2006, Abate served as Executive Director of the Western Monmouth

Utilities Authority (“WMUA”), the entity responsible for the sewer systems of Marlboro

and Manalapan, New Jersey. The counts of conviction revolve around a kickback scheme

involving Abate and two developers, as well as Abate’s attempt to cover up that scheme

by manufacturing a fraudulent paper trail. Distilled to its essence, Abate assisted the

developers in obtaining WMUA approval for various real estate development plans in

exchange for free architectural services used to build an addition to his home.

       The jury convicted Abate of five counts of honest services mail fraud and one

count of obstruction of justice. The District Court sentenced him to 51 months’

imprisonment, at the high end of the applicable Guidelines range.

                                              II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise




   1
    Abate was acquitted on nine counts: six counts of mail fraud, two counts of extortion
under color of official right, and one count of obstruction of justice.

                                               2
plenary review over a district court’s interpretation of the Federal Rules of Evidence;

factual findings are reviewed for clear error. United States v. Weaver, 507 F.3d 178, 180

n.1 (3d Cir. 2007). In addition, “[w]e review the District Court’s ruling on any

contemporaneous objections for abuse of discretion . . . Any non-contemporaneous

objections are subject to plain error review.” United States v. Brennan, 326 F.3d 176, 182

(3d Cir. 2003). When evaluating jury instructions, we exercise plenary review over the

question of whether the instruction stated the proper legal standard, but abuse of

discretion review when considering the instruction’s particular language. United States v.

Khorozian, 333 F.3d 498, 508-09 (3d Cir. 2003). The reasonableness of a sentence is

reviewed for abuse of discretion. See United States v. Sevilla, 541 F.3d 226, 230 (3d Cir.

2008).

                                              III.

         Abate’s allegations of error at trial include an evidentiary ruling and various

aspects of the government’s summation.

                                               A.

         Abate argues that the District Court improperly admitted into evidence an audio

recording of a conversation between the developers and the architect who performed the

architectural services that were allegedly the subject of the bribery. The recording, made

without the developers’ knowledge, arguably demonstrates the developers’ consciousness

of guilt and attempt to conceal the scheme. Abate asserts that the recording does not



                                               3
qualify under Federal Rule of Evidence 801(d)(2)(E), and is not relevant.

       Rule 801(d)(2)(E) provides that a statement of a coconspirator is not hearsay, and

thus generally admissible, when made “during the course and in furtherance of the

conspiracy.” There are four requirements for a statement to qualify under this Rule:

       (1) that a conspiracy existed;
       (2) the declarant and the party against whom the statement is offered were
       members of the conspiracy;
       (3) the 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).

       Statements made after a conspiracy has ended do not qualify under the Rule, even

if made with the intent to cover up the conspiracy. See, e.g., United States v. Pecora, 798

F.2d 614, 629 (3d Cir. 1986). Here, however, the conspiracy was ongoing at the time of

the recording. The evidence at trial indicates that Abate and the developers were engaged

in a continual scheme to grease the wheels of the WMUA. That scheme was still active at

the time of the recording,2 and the recording was thus “in furtherance of the main criminal

objectives of the conspiracy,” Grunewald v. United States, 353 U.S. 391, 405 (1957),

“serv[ing] not only to cover up the declarant’s past participation in criminal behavior, but

to shield the ongoing conspiracy as well,” Pecora, 798 F.2d at 630.



   2
     For example, a major aspect of the scheme involved helping the developers acquire
access to WMUA sewer systems at reduced cost for a development project known as
Brown Stone Commons or Marlboro Grand. At the time of the recording, that access had
not yet been acquired; while an agreement to cap the developers’ costs had been reached,
the ultimate goal of the conspiracy had not been achieved.

                                             4
       The recording was also relevant. While it was direct evidence only of the

developers’ state of mind, it was also evidence from which the jury could infer the

existence of a kickback scheme. Such circumstantial evidence is entirely appropriate.3

                                             B.

       Abate challenges several aspects of the government’s summation. First, he argues

that the government impermissibly commented on his decision not to testify. In

summation, the government played an audio recording of a phone conversation in which

the architect tells Abate that the developers paid for the architectural plans. Abate

responds by saying that he will “take that up with [the developers].” (App. Volume 1 at

109.) After playing this portion of the conversation, the government stated: “No

testimony relating to the defendant taking anything up with the [developers].” (Id. at

Volume 5, Ex. 3 at 87.) According to Abate, this constituted improper commentary on

his silence because he was the only witness who could have provided such testimony.

       We disagree. “A remark [by a prosecutor] is directed to a defendant’s silence

when the language used was manifestly intended or was of such a character that the jury



   3
      United States v. Trala, 386 F.3d 536 (3d Cir. 2004), does not require a different
result. In Trala, we found that statements of the defendant’s girlfriend were not relevant
to show defendant’s guilt. Id. at 546. But Trala is distinguishable from the instant case
in light of the different crimes in the two cases. Here, the developers’ statements were
relevant because they allowed the jury to infer the existence of a dishonest scheme. In a
prosecution for honest services mail fraud, such a scheme is unquestionably relevant. On
the other hand, the girlfriend’s statements in Trala had no particular relevance to armed
bank robbery. In short, the developers’ statements were circumstantial evidence that a
scheme existed to defraud the public of Abate’s honest services.

                                             5
would naturally and necessarily take it to be a comment on the failure of the accused to

testify.” Brennan, 326 F.3d at 187 (internal citations and quotations omitted). The

government’s off-hand comment did not imply anything about Abate’s decision not to

testify, and there is no reason to suspect that the jury thought it did.

       Moreover, other witnesses could have testified about discussions that Abate had

with the developers. For example, Abate’s attorney testified in support of his advice of

counsel defense, see infra, and presumably could have provided information on this issue.

And, we note, documentary evidence in the case supported the conclusion that Abate had

taken the issue up with the developers. (See App. Volume 1 at 111 (letter from Abate to

one of the developers).) Thus, while the comment may have been an incorrect summary

of the evidence, it did not infringe on Abate’s rights. See Brennan, 326 F.3d at 187

(“Statements regarding the absence of facts in the record . . . need not be taken as

comment on [a] defendant’s failure to testify.”) (alterations in original) (internal citations

and quotations omitted).

       Abate next challenges the following statement made in the government’s

summation: “Well, you don’t need to go to a lawyer to say, ‘pay your bills,’ do you? But

you do if you’re trying to cover your tracks. You do if you’re trying to make it appear

that there’s nothing going on, that there’s nothing wrong with what you’re doing.” (App.

Volume 5, Ex. 3 at 88-89.) According to Abate, this statement burdened his right to

counsel. See United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973).



                                               6
       The government should not ordinarily comment on a defendant’s decision to

consult with counsel. Id. at 615-16 (noting the danger of imposing a penalty on a

defendant’s valid exercise of constitutional rights). Here, however, Abate himself placed

in issue his decision to consult with counsel: he requested and received an instruction

about the validity of relying, in good faith, on the advice of counsel. (See App. Volume

5, Ex. 3 at 33-34.) The government’s statement was clearly responsive to this defense:

       Don’t be fooled by this advice of counsel defense. Don’t be fooled by the
       fact that he contacted a real estate/commercial lawyer to ask his advice
       relating to what should I do now? He never told, as [his] lawyer testified,
       again, this is their lawyer, he didn’t tell him that he knew, he, being the
       defendant, that the [developers] paid for this bill. He didn’t say: You know
       what, there’s a federal grand jury investigation out there looking into my
       activities. Should I cut a check? He said innocently: I was looking at my
       files and I, you know, I noticed that I didn’t pay this architect. What should
       I do? Well, you don’t need to go to a lawyer to say, ‘pay you bills,’ do you?
       But you do if you’re trying to cover your tracks. You do if you’re trying to
       make it appear that there’s nothing going on, that there’s nothing wrong
       with what you’re doing.

(Id. at 88-89 (emphasis added).)

       In the context of Abate’s defense, this statement was proper. See Brennan, 326

F.3d at 186 (reading the government’s summation in context, and finding no violation).

                                            IV.

       Abate also challenges his sentence of 51 months’ imprisonment. First, he disputes

the District Court’s application of a two-level enhancement pursuant to U.S.S.G. §

2C1.1(b)(1). Section 2C1.1(b)(1) applies when the underlying crime involved “more than

one bribe.” Abate contends that the evidence does not support a finding of a quid pro

                                             7
quo, an alleged prerequisite for bribery. This argument has no merit.

       At trial, WMUA Commissioner Eric Abraham testified to benefits that Abate

provided and could have provided to the developers. The District Court credited this

testimony in concluding that bribery occurred. Abate has offered no reason to second-

guess that decision. While there may have been no evidence of “explicit extortion,” there

was substantial circumstantial evidence indicating a quid pro quo.4 (App. Volume 5, Ex.

3 at 59.)

       Abate next asserts that his sentence was unreasonable under 18 U.S.C. § 3553

because the District Court did not adequately consider whether he was entitled to a

variance in light of the sentences in other public corruption cases in the District of New

Jersey. Section 3553 mandates that the sentencing judge take into account “the need to

avoid unwarranted sentence disparities” in fashioning an appropriate sentence. 18 U.S.C.

§ 3553(a)(6). Although the Court never explicitly mentioned that it had taken this factor

into account, the Court did state that it had “reviewed the presentence report, the

sentencing memorandum of the defendant, as well as the government[’s memorandum].”

(App. Volume 5, Ex. 4 at 19.) And, of course, having presided at the trial, the Court had

an in-depth understanding of Abate’s conduct.



   4
      Abate points to Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007). Valdes
distinguished illegal gratuities from bribery by noting that the latter requires that a
payment “actually influence the act or omission” whereas a gratuity simply requires that
the payment be “for or because of” the act. Id. at 1327. The evidence here could support
either conclusion, and the District Court was justified in applying the enhancement.

                                             8
       Moreover, we do not require a sentencing judge to “discuss every argument made

by a litigant if an argument is clearly without merit.” United States v. Cooper, 437 F.3d

324, 329 (3d Cir. 2006). The District Court was entirely justified in dismissing the weak

uniformity argument, raised by Abate only in passing at the sentencing hearing, without

discussion. We find no error.5

                                              V.

       We will affirm the judgment of the District Court.




   5
     Abate also contends that various other errors were committed at trial, including: the
government’s alleged vouching for the evidence in summation, the false exculpatory
statement jury instruction, the persons not on trial jury instruction, and the application of
the high-level official enhancement pursuant to U.S.S.G. § 2C1.1(b)(3). We have
carefully reviewed the extensive record and the applicable law, and find that these
contentions are without merit.

                                              9
