                                              PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                   ___________________

          Nos. 08-3361, 08-3413, 08-3758, and 08-3759
                    ___________________

                UNITED STATES OF AMERICA,
                        Appellant in 08-3758 & 08-3759

                                v.

            TAMIKA RILEY AND SHARPE JAMES

                Tamika Riley, Appellant in 08-3361
               Sharpe James, Appellant in 08-3413
                    ___________________

          On Appeal from the United States District Court
                   for the District of New Jersey
                     (D.C. No. 2-07-cr-00578)
           District Judge: Honorable William J. Martini
                      ___________________

                      Argued April 13, 2010

   Before: SLOVITER and NYGAARD, Circuit Judges, and
                   RESTANI,* Judge


               (Opinion Filed: September 16, 2010)

                      ___________________


Gerald Krovatin ARGUED


      *
        Honorable Jane A. Restani, Chief Judge of the United
States Court of International Trade, sitting by designation.
Krovatin Klingeman
744 Broad Street
Suite 1903
Newark, NJ 07102

Alan D. Bowman ARGUED
Suite 105
Gateway One
Newark, NJ 07102
       Attorneys for Appellants

Norman Gross ARGUED
Office of United States Attorney
Camden Federal Building & Courthouse
401 Market Street
P.O. Box 2098, 4th Floor
Camden, NJ 08101

Paul J. Fishman
Ralph J. Marra, Jr.
George S. Leone
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
       Attorneys for Appellee

                     ___________________

                  OPINION OF THE COURT
                   ___________________

RESTANI, Judge.

       Defendant-Appellants and Cross-Appellees
(“Appellants”) Sharpe James (“James”) and Tamika Riley
(“Riley”) were convicted in the United States District Court for
the District of New Jersey of three counts of mail fraud (Counts
1–3) as part of a scheme to convey City-owned property in
violation of 18 U.S.C. § 1341 and 2, one count of fraud (Count

                                  2
4) involving a local government receiving federal funds in
connection with the fraudulent sale of City-owned properties in
violation of 18 U.S.C. § 666(a)(1)(A) and 2, and one count of
conspiracy (Count 5) to defraud the public of James’s honest
services contrary to 18 U.S.C. §§ 1341 and 1346, in violation of
18 U.S.C. § 371. These five counts are collectively called the
“Land Fraud Counts.” Additionally, Riley was convicted of
three counts of housing assistance mail fraud in violation of 18
U.S.C. § 1341 and 2, and three counts of tax fraud for her failure
to report income in violation of 26 U.S.C. § 7206(1). Appellants
appeal the Land Fraud Counts. For the following reasons we
will reverse the convictions on Count 5 and affirm the
convictions on Counts 1–4.

I.     Factual Background and Procedural History

       A.     Facts

        The jury convicted Sharpe James and Tamika Riley of the
Land Fraud Counts for engaging in a fraudulent scheme to assist
Riley’s purchase of City-owned parcels of real property under
the South Ward Redevelopment Plan (“SWRP”). Sharpe James
was the Mayor of Newark, New Jersey for twenty years between
July 1986 and June 2006. James was also a New Jersey State
Senator representing the 29th Legislative District from 1999
until 2008. Tamika Riley, who had an intimate relationship with
James, was the owner and chief executive officer (“CEO”) of
Tamika Riley, Inc. (“TRI”), a public relations firm specializing
in the entertainment industry.

              1.      South Ward Redevelopment Plan

        In the aftermath of the 1967 Newark riots, many residents
abandoned the city, and the market for properties substantially
eroded. During this time, home ownership was extremely low
and lenders often would not provide financing to acquire
property in Newark. In 1998, in order to address these problems,
Newark adopted the SWRP, which was designed to sell parcels
of distressed, City-owned real property at low prices to pre-
approved developers, without advertisement and public bidding.

                                3
In exchange, the purchaser contracted to construct new or
renovated housing on those parcels,1 which would then be sold,
occupied, and returned to the City’s tax rolls, in order to
revitalize the residential real estate market and redevelop
Newark.

       The New Jersey Department of Economic and Housing
Development (“DEHD”) managed the SWRP process. Initially,
the DEHD conducted a pre-qualification process that screened
applicants to ensure they had experience in the construction of
residential property and the ability to finance the projects. Once
DEHD approved an application, department officials drafted a
resolution and the contracts, which were then reviewed by the
attorneys in the Newark Corporate Counsel’s Office (“Corporate
Counsel”),2 the City Clerks office, and the Municipal Council.3
After the resolutions were approved by the Municipal Council,
the DEHD was responsible for enforcing the contractual
provisions to renovate the distressed properties.

        The SWRP proved successful and profitable to
participants early on. By 2001-2002, the market for Newark real
estate surged and applicants for SWRP property flooded the
DEHD with requests. This success prompted the Municipal


       1
         The contracts specifically forbade “speculation in
landholding.” Supplemental Appendix For the United States
(“SA”) 611:217; 1456 § 17(a). “Speculation” involved purchasing
the real property merely for resale at a higher price, rather than for
renovation.
       2
        Corporate Counsel reviewed the resolutions and contracts
for form and legality.
       3
        The city of Newark elects both a Mayor, who is the chief
of the city, and a Municipal Council, which serves as the
legislature. The Mayor is empowered, subject to Municipal
Council approval, to sell real property owned by the City. The
Municipal Council, without conducting its own investigation,
reviewed and considered the DEHD resolutions to determine
whether it would authorize the contracts.

                                  4
Council to pressure the program to accommodate “local
entrepreneurs” and minorities with little or no development
experience. Thus, the DEHD abandoned the pre-qualification
process and no longer required applicants to have development
experience so long as an applicant had “the right team” to fulfill
the obligations under the contract.

              2.     James’s Control Over the SWRP

       James was very involved in the SWRP process as were
his subordinates. Basil Franklin (“Franklin”) served as Chief of
Housing Production under the James Administration and
reported directly to James’s Deputy Mayor who was also the
Director of the DEHD. James met frequently with his Deputy
Mayor to discuss the availability and allocation of properties
under the SWRP.4 The Deputy Mayor would then direct
Franklin to approve the SWRP application of those who had
been recommended by James.

       During the time period at issue, James and the Municipal
Council disagreed as to who had the power to select eligible
persons to receive City property under the SWRP. After the
Municipal Council prevailed in litigation against the Mayor
regarding this issue, James successfully sponsored legislation in
2004, Senate Bill 967, that authorized the Mayor alone to select
persons eligible for SWRP property.

              3.     James and Riley’s Relationship and
                     Riley’s Acquisition of SWRP Properties

       In 1999, Riley introduced the Mayor to a Newark-born
professional basketball player, Eric Williams (“Williams”).



       4
        In 2005, a friend of James went to James’s home and asked
him how to acquire property through the SWRP. James revealed
detailed knowledge about which parcels were available for sale,
who had acquired such properties in the past, and stated that if his
friend applied for property he would “take care of” the process.
SA 506:37.

                                 5
Williams had recently signed a contract with the Boston Celtics
and was interested in investing in his home town of Newark.
Shortly after the Williams introduction, James’s Deputy Mayor
brought Riley and her friend to Franklin’s office and told
Franklin that James wanted him to “help these ladies acquire
some property.” SA 229:172. Franklin knew that Riley had no
experience as a real estate developer, but at the time Riley
applied for property the pre-qualification process had been
abandoned.

       Both James and Riley contest the duration of their
intimate relationship. Nonetheless, James was aware that the
City transferred real estate parcels to Riley because in his official
capacity as Mayor, James signed each of the contracts
transferring the properties to TRI. Riley maintained calendars
and daily “agenda” lists containing innumerable notations
regarding her communications with James about the status of her
acquisitions of City-owned property from 2001 through 2006.
James was also copied on a letter “advising” Riley that certain
City-owned properties were set aside for acquisition by her
company. Further, in April 2000, Riley wrote a letter to James,
thanking him for his assistance in helping her to obtain City-
owned properties.

        Riley acquired City-owned property in three phases.
Phase I consisted of four properties and Phase II consisted of
three properties. Although the Municipal Council approved the
sale of five other Phase III parcels to Riley in 2002, she was
unable to close on the properties because James informed
Franklin that the City “will not do any more business with
Tamika Riley until further notice.” SA 235:196. In 2004, Riley
resumed her pursuit of the SWRP properties (amended Phase III)
and the Municipal Council authorized the sale of four other
properties to Riley.

       Riley developed only two of all the parcels she purchased
under the SWRP. As to those properties that she did not




                                 6
develop, Riley quickly turned around and sold them for a profit.5
Riley’s access to SWRP property ended in 2006, however, when
a new mayoral administration instituted legal proceedings to
block the sale of the properties to her.

       B.     The Indictment, Trial, and Sentencing

        In July 2007, a federal grand jury sitting in Newark
returned a 33-count indictment. The District Court severed the
first twenty counts and the Government submitted a redacted and
renumbered indictment (hereinafter, “Indictment”).6 Counts 1–5
of the Indictment, the Land Fraud Counts, include Counts 1–3,
which charged James and Riley with mail fraud as part of the
scheme to convey City-owned property to Riley between 2002
and 2005, in violation of 18 U.S.C. §§ 1341 and 2.7 Count 4
charged James and Riley with fraud involving a local
government receiving federal funds, in connection with the
fraudulent sale of City-owned properties to Riley in 2005, in
violation of 18 U.S.C. §§ 666(a)(1)(A) and 2. Count 5 charged
James and Riley with conspiracy to defraud the public of
James’s honest services between 1999 and 2006, contrary to 18
U.S.C. §§ 1341 and 1346, in violation of 18 U.S.C. § 371.
Counts 6–9 (collectively, the “Housing Fraud Counts”) charged
Riley with housing assistance fraud in violation of 18 U.S.C.
§§ 1341 and 2. Finally, Counts 10–13 (collectively, the “Tax
Fraud Counts”) charged Riley with tax evasion in violation of 26
U.S.C. § 7206(1).


       5
       For example, Riley paid $18,000 for the Phase II properties
and without making any improvements sold them for $80,000 a
month later.
       6
        The group of severed counts charged James with a scheme
to defraud the City of Newark of money and property through the
misuse of City of Newark credit cards.
       7
        Title 18 U.S.C. § 2 states that “[w]hoever commits an
offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is punishable as a
principal.” 18 U.S.C. § 2.

                                7
       Trial began on February 26, 2008. On April 16, 2008,
following five weeks of testimony, the jury convicted James and
Riley on all five Land Fraud Counts and Riley on Counts 6–13.
On July 23, 2008, the District Court denied Appellants’ post-trial
motions. The District Court sentenced James and Riley to a
custodial sentence of twenty-seven months and fifteen-months
respectively. James and Riley appealed the Land Fraud
convictions and the Government cross-appealed the sentences.8

II.    Discussion

        This Court has jurisdiction to hear the instant appeal
pursuant to 28 U.S.C. § 1291. The appeal is limited to the Land
Fraud Counts (Counts 1–5). In light of the recent United States
Supreme Court decision in Skilling v. United States, 130 S. Ct.
2896 (2010), Appellants seek a reversal of Count 5, the
conspiracy to defraud the public of James’s honest services.9
James also argues that if Count 5 falls, then all the Land Fraud
Counts should fall. Although we will reverse Appellants’
convictions under Count 5, we do not find that there is spillover
prejudice sufficient to taint Counts 1–4. Further, we will affirm
the convictions under Counts 1–4 because the District Court did
not err when it denied Appellants’ post trial motions.10


       8
        Riley does not appeal her housing assistance fraud or tax
fraud convictions.
       9
        Skilling was decided after this appeal was argued and was
not available to the District Court, but we are bound by it. See
United States v. Asher, 854 F.2d 1483, 1487 (3d Cir. 1988); see
also Griffith v. Kentucky, 107 S. Ct. 708, 716 (1987) (“[A] new
rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct review
or not yet final, with no exception for cases in which the new rule
constitutes a ‘clear break’ with the past.”).
       10
          Initially, the Government sought to cross-appeal the
sentences of both Appellants because the District Court allegedly
did not apply any adjustment under the honest services guideline.
In light of Skilling, however, the Government considers the cross-

                                  8
       A.     Skilling v. United States and Appellants’ Honest
              Services Fraud Convictions Under Count 5

              1.     Skilling v. United States

        In June 2010, the United States Supreme Court decided
Skilling and addressed the issue of whether the jury properly
convicted Skilling of conspiracy to commit honest services wire
fraud. Skilling, 130 S. Ct. at 2907. Jeffrey Skilling, a longtime
Enron officer, was Enron’s chief executive officer from
February until August 2001, when he resigned. Id. Less than
four months after Skilling resigned from Enron, the company
declared bankruptcy. Id. The jury convicted Skilling “with
conspiracy to commit securities and wire fraud; in particular, it
alleged that Skilling had sought to ‘depriv[e] Enron and its
shareholders of the intangible right of [his] honest services.’”
Id. at 2908.

        The Supreme Court considered the scope and
constitutionality of the honest services statute and determined
that “[t]o preserve the statute without transgressing
constitutional limitations,” § 1346 criminalizes only “fraudulent
schemes to deprive another of honest services through bribes or
kickbacks.” Skilling, 130 S. Ct. at 2928, 2931. The Supreme
Court rejected the Government’s argument that § 1346 should
also encompass “undisclosed self-dealing by a public official . . .
[such as] the taking of official action by the [official] that
furthers his own undisclosed financial interests while purporting
to act in the interests of those to whom he owes a fiduciary
duty.” Id. at 2932 (internal quotation marks and citation
omitted). Because the Government in Skilling did not allege that
Skilling accepted bribes or kickbacks, the Supreme Court
determined that Skilling’s honest services fraud conviction was
flawed and vacated the Fifth Circuit’s affirmance of Skilling’s
conspiracy conviction. Id. at 2934–35.

              2.     The Effect of Skilling on Appellants’



appeal to be moot.

                                9
                      Honest Services Fraud Convictions
                      (Count 5)

        Appellants argue that the Indictment and the District
Court’s jury instructions with regard to honest services fraud are
inconsistent with the Supreme Court’s decision in Skilling and
therefore, the conviction under Count 5, “Conspiracy to Use the
U.S. Mail to Defraud the Public of Defendant James’s Honest
Services,” must be dismissed. Although James and Riley
challenged the honest services charge on various bases, they did
not argue below that honest services fraud was void for
vagueness or should be limited to bribes or kickbacks.11
Therefore, the most appropriate standard of review is plain error
under Federal Rule of Criminal Procedure 52(b).12 United States
v. Marcus, 130 S. Ct. 2159, 2164 (2010). Pursuant to Federal
Rule of Criminal Procedure 52(b), an appellate court may
recognize a “plain error that affects substantial rights,” even if
that error was “not brought to the court’s attention.” Fed. R.
Crim. P. 52(b). Thus,

       an appellate court may, in its discretion, correct an error
       not raised at trial only where the appellant demonstrates
       that (1) there is an “error”; (2) the error is “clear or
       obvious, rather than subject to reasonable dispute”; [and]
       (3) the error “affected the appellant’s substantial rights,
       which in the ordinary case means” it “affected the


       11
         In particular, Appellants argued that the jury instructions
to Count 5 were invalid because the District Court required merely
a general finding of a violation of a common-law fiduciary
relationship between a public servant and the public, rather than
requiring a violation of a specific statute prohibiting non-disclosure
of a conflict of interest. In light of Skilling and the disposition of
Count 5, we need not address this claim.
       12
         While we have applied a plain error standard here, one
could view its application here as somewhat harsh, given the
defendant’s objection to the breadth of the honest services charge,
see supra note12, and a Supreme Court opinion that was not easy
to predict.

                                 10
       outcome of the district court proceedings.”

Marcus, 130 S. Ct. at 2164 (citing Puckett v. United States, 129
S. Ct. 1423, 1429 (2009)). “If all three conditions are met, an
appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.”
Johnson v. United States, 520 U.S. 461, 467 (1997) (quotation
marks and citation omitted).

                        i.      Plain Error Review

       The first inquiry is whether the District Court erred
because it failed to charge the jury in accordance with the
Supreme Court’s limitation of honest services fraud in Skilling.
The District Court charged the jury, consistent with the
Indictment, that a conviction with respect to Count 5,
“Conspiracy to Use the U.S. Mail to Defraud the Public of
Defendant James’s Honest Services,” could be found if James
breached one or more of the following three duties of honest
services as a public official owed to the State of New Jersey and
the City of Newark:

       (i) . . . knowingly committing acts related to his official
       positions that were unauthorized exercises of his official
       functions for the purpose of obtaining and receiving
       money and benefits for himself and others from the
       governments that he represented, contrary to N.J. Stat.
       Ann. § 2C:30–2;13



       13
            New Jersey Statute § 2C:30-2 states in pertinent part that,

             [a] public servant is guilty of official misconduct when,
             with purpose to obtain a benefit for himself or another or
             to injure or to deprive another of a benefit . . . [h]e
             commits an act relating to his office but constituting an
             unauthorized exercise of his official functions, knowing
             that such act is unauthorized or he is committing such act
             in an unauthorized manner.

                                   11
       (ii) as part of his fiduciary duty and his obligation
       pursuant to the circumstances set forth in Title 18, United
       States Code, Section 666(a)(1)(A),14 to refrain from
       stealing, taking by fraud, misapplying and
       misappropriating the assets of his public employers; and
       (iii) as part of his fiduciary duty, to disclose conflicts of
       interest to his public employers in official matters over
       which defendant JAMES exercised, and attempted to
       exercise, official authority and discretion, and to recuse
       himself where he had such conflicts of interest.

Appendix on Behalf of Appellant Tamika Riley (“RA”) 152–53.
As an introduction to all three, however, the District Court
instructed the jury that honest services fraud does not require a
scheme to defraud another to obtain money or property, and
could instead be based on a violation of a duty of honest, faithful
and disinterested service.15 The law of this circuit, prior to


N. J. Stat. Ann. § 2C:30-2.
       14
         Section 666(a)(1)(A), in its pertinent part, makes any agent
of a State or local government who “embezzles, steals, obtains by
fraud, or otherwise without authority knowingly converts to the use
of any person other than the rightful owner or intentionally
misapplies . . . property,” liable for a federal offense. 18 U.S.C.
§ 666(a)(1)(A).
       15
            The District Court Judge specifically instructed the jury
that

       [s]ince honest services mail fraud does not require a scheme
       to defraud another to obtain money or property, I will now
       instruct you on what a scheme to defraud another of honest
       services means . . . . [T]he right to honest services is the
       right that comes from a relationship of trust that one forms
       with another individual or with an institution. This is
       known in the law as a fiduciary relationship. [A] fiduciary
       is prohibited from acting to enrich himself on behalf of the
       principal. Since the fiduciary acts and speaks for the
       principal, the fiduciary also owes the principal that he

                                   12
Skilling, did not require a different charge than that given by the
District Court Judge here. See United States v. Antico, 275 F.3d
245, 264 (3d Cir. 2001) (holding that honest services fraud
constituted a duty “to disclose material information affecting an
official’s impartial decision-making and to recuse himself . . .
regardless of a state or local law codifying a conflict of
interest”). In light of Skilling, however, the failure to limit
honest services fraud to “bribes and kickbacks,” Skilling, 130 S.
Ct. at 2928, now constitutes legal error, see United States v.
Retos, 25 F.3d 1220, 1229 (3d Cir. 1994) (stating that under
Rule 52(b) “[a] deviation from a legal rule is error” (internal
quotation marks and citation omitted)).

        For the same reason the second inquiry is met. An
“error” is plain, clear, or obvious “where the error was unclear at
the time of trial but becomes clear on appeal because the
applicable law has been clarified.” Retos, 25 F.3d at 1230
(citing United States v. Olano, 113 S. Ct. 1770, 1777 (1993)). In
April 2008, at the time of trial, there was no plain error in the
honest services fraud charge given by the District Court Judge
because it was consistent with the law of this circuit. See
Antico, 275 F.3d at 264. The error became clear and obvious,
however, when the Supreme Court’s decision in Skilling, on
June 24, 2010, narrowed honest services fraud to “bribes and
kickbacks.” Skilling, 130 S. Ct. at 2928. Thus, the error at issue
here is a plain error and not “subject to reasonable dispute.”
Marcus, 130 S. Ct. at 2164 (internal quotation marks and citation
omitted).

       The third inquiry is whether the district court’s plain error
affected appellant’s substantial rights. As mentioned above, this



       serves a duty of frankness and candor in matters that are of
       material importance to the principal. . . . A public official
       is a fiduciary for the public and the government he serves .
       . . [and] owes a duty of honest, faithful and disinterested
       service to the public and that official’s public employer.

SA 1202:59–1203:62.

                                 13
normally occurs where the error “affect[s] the outcome of the
district court proceedings.” Marcus, 130 S. Ct. at 2164
(quotation marks and citation omitted). The Government
concedes that the third alternative description of duty charged to
the jury under honest services fraud is now “invalid” in light of
Skilling, but argues that James and Riley would have been
convicted under either of the other two theories of duty. “[I]f the
jury was instructed on alternative theories of guilt and may have
relied on an invalid one” it is subject to harmless-error review.
Hedgpeth v. Pulido, 129 S. Ct. 530, 530, 532–33 (2008) (per
curiam). Thus, we are called upon to perform what is essentially
a harmless error inquiry.

                     ii.     Harmless Error Review

        “The test for harmless error is whether it is ‘highly
probable that the error did not contribute to the judgment.’”
United States v. Vosburgh, 602 F.3d 512, 540 (3d Cir. 2010)
(citing United States v. Dispoz-O-Plastics, Inc., 172 F.3d 275,
286 (3d Cir. 1999)). The Government argues, in essence, that
the error is harmless because the first two alternative theories of
duty under Count 5 remained valid bases for finding a Count 5
conspiracy post-Skilling.

        This argument is not persuasive, however, because of the
manner in which the now-erroneous description of honest
services fraud was interwoven throughout the Count 5 jury
charge. The very title of Count 5, “Conspiracy to Use the U.S.
Mail to Defraud the Public of Defendant James’s Honest
Services,” invites the application of the District Court’s charge
to the jury regarding honest services fraud to the entire count.
As indicated, the jury instructions for Count 5 began with an
over-arching umbrella description of James’s fiduciary duty as a
public official, which included the now-erroneous honest
services definition. Shortly thereafter, the instructions charged
that the “Indictment alleges that the Defendant James had the
following [three] duties.” SA 1203:62. Although the
Government argues that these three theories are “alternative”
forms of conspiracy liability, and the first two are separate and
distinct from James’s violation of honest services obligations

                                14
based on his failure to disclose his conflict of interest, the
District Court Judge did not make such a clear distinction in his
charge to the jury. Rather, the broad definition of honest
services seems to apply to all three duties.

       While it is true that the jury convicted James of a
substantive violation referred to in one of the alternative
descriptions of duty, 18 U.S.C. § 666 (Count 4), we cannot be
certain of how the jury utilized the broad definition of an honest
services violation given in connection with the entire conspiracy
charge. This is particularly true because the charge was
described as “Conspiracy to Use the U.S. Mail to Defraud the
Public of James Honest Services,” and because of the general
manner in which the Government argued for conviction on
Count 5. Rather, it appears highly probable that the now-
erroneous honest services fraud definition contributed to the
convictions on Count 5. The plain error, therefore, was not
harmless.

        Lastly, because all three conditions are met this Court can
choose to exercise its discretion only if “the error seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Cotton, 535 U.S. 625, 631
(2002). “We have held previously that affirming a conviction
where the government has failed to prove each essential element
of the crime beyond a reasonable doubt affect[s] substantial
rights, and seriously impugns the fairness, integrity and public
reputation of judicial proceedings.” United States v. Jones, 471
F.3d 478, 480 (3d Cir. 2006) (quotation marks and citations
omitted). It is clear that as far as a conspiracy to commit honest
services fraud, as set forth in 18 U.S.C. § 1346, the Government
did not prove that fraud occurred by means of bribes or kickback
as is now required by Skilling. Appellants focused on the
definition of honest services because that was the heart of Count
5. In the context of this case, where the fraudulent act is the
non-disclosure of a conflict of interest, it would demean the
judicial process to attempt to put the genie back in the bottle by
essentially rewriting the charge to the jury on Count 5 and
assuming the jury made distinctions the Government did not
bring out in its summation.

                                15
              3.     Prejudicial Spillover

        James argues that all of his convictions hinged on the
honest services doctrine and thus all the Land Fraud Counts must
fall with Count 5. “Generally, invalidation of the convictions
under one count does not lead to automatic reversal of the
convictions on other counts.” United States v. Pelullo, 14 F.3d
881, 897 (3d Cir. 1994). Rather, prejudicial spillover analysis
requires a finding that “there was a spillover of evidence from
the reversed count that would have been inadmissible at a trial
limited to the remaining count.” United States v. Cross, 308
F.3d 308, 319 (3d Cir. 2002). “If the answer is ‘no,’ then our
analysis ends, as the reversed count cannot have prejudiced the
defendant.” Id. at 318. If the answer is “yes,” however, “we
must ask whether the error was harmless, that is, whether it is
highly probable that the error did not prejudice the jury’s verdict
on the remaining counts.” United States v. Gambone, 314 F.3d
163, 181 (3d Cir. 2003). Harmlessness is determined by
conducting a four-part inquiry into whether,

       (1) the charges are intertwined with each other; (2) the
       evidence for the remaining counts is sufficiently distinct
       to support the verdict on th[ose] counts; (3) the
       elimination of the invalid count significantly changed the
       strategy of the trial; and (4) the prosecution used language
       of the sort to arouse the jury.

United States v. Murphy, 323 F.3d 102, 118 (3d Cir. 2003)
(quotation marks omitted) (citing Pelullo, 14 F.3d at 898–99).

       With respect to the first Cross prong, whether there is
now-inadmissible evidence stemming from the reversed count,
post-Cross cases have universally analyzed the admissibility of
the evidence supporting the fallen count in a hypothetical trial
limited to the remaining count. See e.g., United States v. Lee,
612 F.3d 170, 180 (3d Cir. 2010); United States v. Atiyeh, 402
F.3d 354, 373–74 (3d Cir. 2005); Murphy, 323 F.3d at 118;
Gambone, 314 F.3d at 181 (3d Cir. 2003). Appellants, however,
have not pointed to any specific evidence admitted at trial that
would now be inadmissible as a result of the reversal of Count 5.

                                16
Nonetheless, James argues that there is indeed spillover
prejudice because of the intertwined nature of the Land Fraud
Counts (Counts 1–5) and the pervasive theme of honest services
fraud throughout this case. In order to address Appellants’
arguments we will assume arguendo that there is some leeway in
the application of the Cross threshold inquiry.

       Counts 1–3 charged James and Riley with substantive
mail fraud as part of the scheme to convey City-owned property
to Riley between 2000 and 2006, in violation of 18 U.S.C.
§ 1341. The federal mail fraud statute states in relevant part
that,

       [w]hoever, having devised or intending to devise any
       scheme or artifice to defraud, or for obtaining money or
       property by means of false or fraudulent pretenses,
       representations, or promises . . . deposits or causes to be
       deposited any matter or thing whatever to be sent or
       delivered by any private or commercial interstate carrier .
       . . any such matter or thing, shall [have committed a
       federal offense].

18 U.S.C. § 1341. Thus, in order to find a defendant guilty of
mail fraud under § 1341, the prosecution must prove that: (1)
there was a scheme to defraud; (2) the defendant acted with the
intent to defraud; and (3) the defendant used the mails to further
or carry out the scheme. United States v. Jimenez, 513 F.3d 62,
81 (3d Cir. 2008) (citing United States v. Pharis, 298 F.3d 228,
234 (3d Cir. 2002)).

        Count 4 charged James and Riley with fraud and
misapplication of public property involving a local government
receiving federal funds, in connection with the fraudulent sale of
City-owned properties to Riley in 2004 and 2005, in violation of
18 U.S.C. § 666(a)(1)(A). Section 666(a)(1)(A), in its pertinent
part, states that any agent of a State or local government who
“embezzles, steals, obtains by fraud, or otherwise without
authority knowingly converts to the use of any person other than
the rightful owner or intentionally misapplies, property,” is liable



                                17
for a federal offense. 16 18 U.S.C. § 666(a)(1)(A).

       As discussed above, Count 5 charged James and Riley
with “Conspiracy to Use the U.S. Mail to Defraud the Public of
Defendant James’s Honest Services,” contrary to 18 U.S.C.
§§ 1341 and 1346, in violation of 18 U.S.C. § 371.17 Section
1346 states that “[f]or the purposes of this chapter, 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. In all five of the Land Fraud Counts, fraud,
particularly fraud in the form of an undisclosed conflict of
interest, was the common thread and the core element of the
charge. The question remains, however, as to whether there is
any difference between the fraud charged under §§ 1341 and 666
and the honest services fraud charged under § 1346. This
distinction is best seen through a review of the general history of
mail fraud and honest services mail fraud.

        Congress enacted the original mail fraud provision in
1872 and proscribed the use of the mails to advance “any scheme
or artifice to defraud.” McNally v. United States, 483 U.S. 350,
356 (1987). In 1909, Congress codified the Supreme Court’s
decision in Durland v. United States, 161 U.S. 306 (1896), and
confirmed that the purpose of the mail fraud statute was to
protect property rights. McNally, 483 U.S. at 357. The amended


       16
         Section 666 was “designed to create new offenses to
augment the ability of the United States to vindicate significant acts
of theft, fraud, and bribery involving Federal monies which are
disbursed to private organizations or State and local governments
pursuant to a Federal program.” United States v. Cicco, 938 F.2d
441, 444 (3d Cir. 1991) (internal quotation marks and citation
omitted).
       17
         Section 371 states that it is a federal offense “[i]f two or
more persons conspire either to commit any offense against the
United States, or to defraud the United States, or any agency
thereof in any manner or for any purpose, and one or more of such
persons do any act to effect the object of the conspiracy . . . .” 18
U.S.C. § 371.

                                 18
statute prohibited, as it does today, “any scheme or artifice to
defraud, or for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises.” 18 U.S.C.
§ 1341. Subsequent Courts of Appeals decisions emphasized
“Congress’ disjunctive phrasing . . . [and] interpreted the term
‘scheme or artifice to defraud’ to include deprivations not only
of money or property, but also of intangible rights.” Skilling,
130 S. Ct. at 2926. Thus, the doctrine of honest services fraud
was born and the Supreme Court in Skilling attributes its
ultimate development to the Fifth Circuit’s opinion in Shushnan
v. United States, 117 F.2d 110 (1941). Id.

       Over the next forty-six years, Courts of Appeals most
often applied the theory of honest services fraud to the bribery of
public officials. Id. Courts eventually extended the theory to the
private sector and “by 1982, all Courts of Appeals had embraced
the honest-services theory of fraud.” Id. at 2927. In 1987,
however, the Supreme Court addressed the constitutionality of
the honest-services doctrine and limited the mail fraud statute to
the protection of property rights. McNally, 483 U.S. at 359–60.
The following year, Congress responded unequivocally and
unambiguously. Congress amended the law and reinstated the
intangible right to honest services under the Anti-Drug Abuse
Act of 1988. Cleveland v. United States, 531 U.S. 12, 19–20
(2000); see 18 U.S.C. § 1346.

       Over the next two decades courts were “[a]lert to
§ 1346’s potential breadth” and as a result “the Courts of
Appeals [were] divided on how best to interpret the statute.”
Skilling, 130 S. Ct. at 2928. The Supreme Court noted that
although circuit courts have disagreed on several issues,
including “whether § 1346 prosecutions must be based on a
violation of state law,18 . . . whether a defendant must
contemplate that the victim suffer economic harm, . . . [or]
whether the defendant must act in pursuit of private gain,” Id. at
2928 n.37, none of the courts “had throw[n] out the statute as



       18
         This was the focus of Appellants disagreement with the
District Court’s honest services charge.

                                19
irremediably vague.” Id. at 2928. Thus, Skilling sought to
construe the intent of Congress in its promulgation of § 1346 and
held that “§ 1346 criminalizes only the bribe-and-kickback core
of the pre-McNally case law.” Id. at 2931.

       In observing this back and forth between the courts and
Congress, it appears that to distinguish between the fraud of
§§ 1341 and 666, as opposed to that of § 1346, one must look to
the object of the deprivation and not the underlying fraudulent
act. The underlying fraudulent act (e.g., the misrepresentation or
omission of a material fact) can be exactly the same in all three
provisions, as is the case here.19 Consequently, despite James’s
contention, the mere fact that Counts 1–3 charge Appellants with
a “Scheme to Improperly Favor Close Companion Through
Fraudulent Sale of City Properties,” does not render the counts
automatically invalid under Skilling. Although, as indicated, the
underlying fraudulent act in these counts is non-disclosure of a
conflict of interest, which makes it seem very near to honest
services fraud, what distinguishes Counts 1–3 from honest
services fraud is the object of the fraud.

       Under § 1341, the deprivation at issue is “money or
property.” Under § 666(a)(1)(A), the deprivation is also
“property.” Under § 1346, the deprivation of one’s honest
services is “biased decision making for personal gain.” 20 United


       19
        Fraud in and of itself is difficult to construe and “is not
capable of precise definition.” United States v. Goldblatt, 813 F.2d
619, 624 (3d Cir. 1987). We have stated that fraud can be
“measured in a particular case by determining whether the scheme
demonstrated a departure from fundamental honesty, moral
uprightness, or fair play and candid dealings in the general life of
the community.” Id.
       20
          Because § 1346 is only applicable to the mail and wire
fraud chapter of Title 18, the honest services doctrine does not
apply to the “fraud of property” of § 666(a)(1)(A). Section 1346
states, “[f]or the purposes of this chapter, 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.

                                 20
States v. Antico, 275 F.3d 245, 264 (3d Cir. 2001).
Nonetheless, the Government need not prove actual loss to the
locality to satisfy the elements of the mail fraud statute. United
States v. Copple, 24 F.3d 535, 544 (3d Cir. 1994). It seems,
therefore, that the risk of exposure to such a loss of money or
property is sufficient to distinguish §§ 1341 and 666(a)(1)(A)
fraud from honest services fraud.21 See United States v. Asher,
854 F.2d 1483, 1494 (3d Cir. 1988).22 Here, the District Court


“This chapter” refers to Chapter 63, “Mail Fraud and Other Fraud
Offenses.” Section 666, on the other hand, is in Chapter 31,
“Embezzlement and Theft.”
       21
        With respect to Count 4, intentional misapplication of
property under § 666(a)(1)(A), is also a possible basis for
conviction, which implicates a risk of loss of tangible property.
       22
         In Asher, we illuminated this distinction between what is
deprived under mail fraud as opposed to that of honest services
fraud. As mentioned above, the Supreme Court in McNally
invalidated the honest services doctrine and scaled back § 1341
mail fraud to “fraud of money or property.” Before Congress
reinstated the honest services doctrine, this circuit and many others
were required to distinguish between those cases that were raised
pursuant to the recently invalidated honest services doctrine and
those that properly fell within the scope of a “scheme to defraud of
money or property.” See, e.g., Asher, 854 F.2d at 1489–1494. In
making this distinction, we determined that,

         Although the outcomes in the post-McNally cases . . .
     var[ied] depending on the facts, indictments, and jury
     instructions of the particular case, a common thread running
     through each of these cases [could] be discerned. While we
     recognize that cases may fall on either side of the
     McNally/Carpenter line, those cases that have sustained mail
     fraud convictions have done so where the “bottom line” of the
     scheme or artifice had the inevitable result of effecting
     monetary or property losses to the employer or to the state.
     This common thread appears despite references in the
     indictments, proofs, or instructions to violations of intangible

                                 21
charged that the alleged scheme must contemplate depriving
another of money or property. The Government demonstrated
that the scheme was to get property into Riley’s control when
others more qualified than Riley were waiting in line for these
properties. Whether or not the City of Newark actually lost
money or experienced significant delay in the rehabilitation of
the properties involved in Riley’s transactions, there was risk of
that occurrence because of her lack of experience and privileged
position. Neither is likely to encourage optimal performance
under the program. In fact, Riley did not perform her contractual
obligations. The jury had these facts before it when it
considered the Appellants’ fraudulent intentions and whether the
scheme was to deprive another of money or property. Further,
the District Court did not refer to honest services fraud in its jury
instruction on mail fraud in the earlier counts. There seems to be
little likelihood that the jury used the conflict of interest
underlying all of the fraud claims to satisfy the additional
elements of the separately charged and argued Counts.
Consequently, there is no purpose in further addressing the four-
part harmlessness test as we are convinced that this case presents
no exception warranting departure from step-one of the Cross
analysis. There was no evidence relevant to Count 5 that would
not have been admitted with respect to Counts 1–4.



     rights.
         Essentially, therefore, where rights are involved whose
     violation would lead to no concrete economic harm, and
     where those rights are the only rights involved in the case,
     McNally’s proscriptions would prevent upholding conviction
     on appeal. Where, on the other hand, a violation of the rights
     involved would result in depriving another of something of
     value, and the indictment, the proofs and the instructions are
     based on that fact, then the presence of intangible rights
     language will not prove fatal on appeal.

Asher, 854 F.2d at 1494. This discussion leads to the conclusion
that mail fraud under § 1341 requires that the fraud, at the very
least, expose the allegedly defrauded party to actual or potential
loss of money or property.

                                 22
       B.     Motion for a Judgment of Acquittal

       James and Riley assert that the District Court committed
reversible error when it denied their motion for a judgment of
acquittal on Counts 1–5. Because of our disposition as to Count
5, we will address this allegation with respect to Counts 1–4
only. “We exercise plenary review over a district court’s grant
or denial of a motion for acquittal based on the sufficiency of the
evidence, applying the same standard as the district court.”
United States v. Silveus, 542 F.3d 993, 1002 (3d Cir. 2008).

        In reviewing the sufficiency of the evidence, “we must
view the evidence in the light most favorable to the
Government.” United States v. Pearlstein, 576 F.2d 531, 534
(3d Cir. 1978). This Court affords “deference to a jury’s
findings . . . [and] draw[s] all reasonable inferences in favor of
the jury verdict.” United States v. Anderskow, 88 F.3d 245, 251
(3d Cir. 1996) (internal quotation marks and citation omitted).
The jury’s verdict will be overturned “only when the record
contains no evidence, regardless of how it is weighted, from
which the jury could find guilt beyond a reasonable doubt.”
United States v. Miller, 527 F.3d 54, 62 (3d Cir. 2008) (quoting
United States v. Thayer, 201 F.3d 214, 218–19 (3d Cir. 1999)).
Because the reviewing court must treat all of the incriminating
evidence as true and credible, “[t]he burden on a defendant who
raises a challenge to the sufficiency of the evidence is extremely
high.” United States v. Lore, 430 F.3d 190, 203–04 (3d Cir.
2005) (citing United States v. Serafini, 233 F.3d 758, 770 (3d
Cir. 2000)).

        As discussed above, to sustain a conviction of Counts
1–3, mail fraud under § 1341, the prosecution must prove that:
(1) there was a scheme to defraud; (2) the defendant acted with
the intent to defraud; and (3) the defendant used the mails to
further or carry out the scheme. Jimenez, 513 F.3d at 81 (citing
Pharis, 298 F.3d at 234). Count 4 required the Government to
prove the following five elements: (1) James was an agent of the
government of the City of Newark; (2) the City of Newark was a
local government, that in a one-year period received federal
benefits under the federal program involving a grant, contract,

                                23
subsidy, loan, guarantee, insurance, or other form of Federal
assistance in excess of $10,000; (3) James embezzled, stole,
obtained by fraud, or otherwise without authority knowingly
converted or intentionally misapplied property; (4) such property
belonged to, was in the care, custody, or control of the City of
Newark; and (5) the value of such property obtained by his
conduct was $5000 or more. 18 U.S.C. § 666(a). Aiding and
abetting violations of §§ 1341 and 666 was also charged.

             1.     James

       James challenges the sufficiency of the evidence with
respect to the “scheme to defraud” element of Counts 1–4.
Specifically, James argues that the Government did not prove
fraud because: (1) the intimate relationship between James and
Riley was not proven; (2) James did not “improperly” favor
Riley because Riley was not treated any differently than any
other prospective developer; (3) James’s only “act” with respect
to Riley and the properties was ministerial in nature because he
merely signed contracts that were previously reviewed by the
Corporate Counsel and approved by the Municipal Council; (4)
any omission of their alleged relationship was not material
because the existence of any relationship between James and
Riley would not have disqualified Riley from acquiring property;
and (5) James did not receive any benefit because of the non-
disclosure. These allegations will be addressed in turn.

       First, Riley conceded at trial that they had an intimate
relationship. Further, the Government presented evidence that
indicates that Appellants went on multi-day vacations to
California and the Dominican Republic, and had frequent
interactions of both a personal and business nature. For
example, James and Riley attended sporting events together,
such as the U.S. Open and boxing matches, and appeared at a
Broadway performance together in New York City.
Additionally, Johnny Jones (“Jones”), James’s close political
confidant, personally helped Riley obtain a lease to City-owned
office space for TRI even though his position in the Newark
Government did not normally involve such minor matters.
Indeed, when Riley was not satisfied with the renovations of the

                               24
office space, she threatened to contact the Mayor regarding the
issue. James attended the grand opening of the TRI office and
cut the ribbon at the occasion. James also directed his security
detail, while on duty, to use his credit card, purchase, and install
an air conditioner in the bedroom of Riley’s apartment. A
member of this same security detail testified that on one
occasion James, upon hearing that Riley called, stated he did not
want to talk to Riley because she was “dating someone.” In light
of this evidence presented by the Government, a reasonable jury
could have found sufficient evidence to support a finding of an
intimate relationship between James and Riley.

       Second, James argues that he did not “improperly” favor
Riley because Riley was not treated any differently than any
other prospective developer. The facts, taken in a light most
favorable to the Government, indicate that Riley had a “twenty-
four direct connect” to James, and that James was Riley’s
“‘hook’ in the City.” This relationship resulted in Riley’s access
to City-owned properties that were otherwise unavailable to
most people without development experience. Prospective
buyers were supposed to have personal experience in the
construction of residential property and the ability to obtain
financing for the projects. After the pre-qualification process
was abandoned, the applicant was supposed to be surrounded by
the right “team” of people who had the experience or financial
capacity to deliver what was required under the SWRP. The
evidence suggests that Riley had none of the above. Franklin
knew that Riley had no experience as a real estate developer and
would not have qualified to acquire SWRP properties as the
program was initially operated. Further, Riley did not find a
developer for the properties until after she was awarded the
contracts for the Phase I properties, and thus did not otherwise
have a “team” surrounding her when she received the first
properties.

       Despite this fact, James’s Deputy Mayor and Director of
DEHD, Alfred Faiella (“Faiella”), brought Riley and her friend
to Franklin’s office and told him that James wanted Franklin to




                                25
“help these ladies acquire some property.” 23 Riley subsequently
received a list of City-owned property available for purchase and
in April 2000, Riley sent a letter to James thanking him for
“opening doors” and helping her acquire City-owned properties.

        The Government also presented two witnesses who were
experienced real estate developers in the Newark area, and were
unable to obtain approval for City-owned property. In the case
of Wendee Bailey (“Bailey”), because she was unable to obtain
City property, she began by renovating, financing, and finding
buyers for two of Riley’s Phase I properties. In the end,
however, Riley sold Bailey the subsequent properties outright
without undertaking any renovations of her own. In one
instance, Bailey purchased three properties from Riley for
$80,000—properties for which Riley paid a total of $18,000.
Consequently, the jury could have reasonably inferred that James
treated Riley differently from other developers and improperly
favored her.

       Third, James argues that his only “act” with respect to the
properties was purely ministerial because he merely signed
contracts that were previously reviewed by the Corporate
Counsel and approved by the Municipal Council. The evidence
presented, however, allows for a different conclusion regarding
James’s control over the SWRP process. The SWRP was
considered James’ “baby.” James met frequently with his
Deputy Mayor Faiella, who was also Director of the DEHD, and
Faiella occasionally told Franklin that James wanted certain
persons to receive particular parcels of SWRP property.

       In at least one instance, when Franklin did not follow up
on the request by someone “sent” by James, James called
Franklin personally and directed him to meet with the applicant




       23
         James contests the admissibility of this statement. As
discussed below, however, the District Court did not abuse its
discretion when it admitted the alleged hearsay statement. See
infra Part II.E.

                                26
again.24 James also demonstrated his control over the SWRP
process by informing friends as to how they could acquire
property through the SWRP and indicating he would “take care
of” their application. In the case of Prentis Thompson
(“Thompson”), James showed Thompson a stack of paperwork
regarding applications for SWRP properties that James kept in
his home. James revealed detailed knowledge about which
parcels were available for sale and who had acquired such
properties in the past and represented that he was “in charge” of
the process.

        Further, James insured his ability to select eligible people
for SWRP properties through his position as a New Jersey State
Senator. James and the Municipal Council disagreed as to who
had the power to select eligible persons to receive City property
under the SWRP. After the Municipal Council prevailed in
litigation against the Mayor regarding the issue, James
successfully sponsored legislation in 2004, Senate Bill 967, that
authorized the Mayor alone to exercise that power.

        James was well aware that the City was transferring real
estate parcels to Riley. In his official capacity as Mayor, James
signed each of the contracts transferring the properties to TRI.
Riley maintained calendars and daily “agenda” lists containing
innumerable notations regarding her communications with James
about the status of her acquisitions of City-owned property from
2001 through 2006. James was also copied on a letter
“advising” Riley that certain City-owned properties were being
set aside for acquisition by her company.

       Additionally, James was able to stop and start the
disposition of properties to Riley. In September 2002, Riley sent



       24
         James called Franklin and told him to meet James at a
furniture store in Newark, but Jackie Mattison (“Mattison”),
James’s former Chief of Staff, met Franklin there in his stead.
Mattison told Franklin that he wanted to acquire some property and
when Franklin failed to follow-up on Mattison’s request, James
called Franklin and directed him to meet with Mattison again.

                                 27
Franklin a proposal for the purchase of the initial Phase III
properties, which was approved by the DEHD and the Municipal
Council. After the contracts were signed, but before Riley was
able to close on the Phase III properties, James informed
Franklin that the City “will not do any more business with
Tamika Riley until further notice,” and Riley never acquired
those properties. In 2004, however, Riley resumed her pursuit of
SWRP properties and the Municipal Council authorized the sale
of four other properties to Riley. Consequently, the jury could
have reasonably concluded that James’s relationship to the
SWRP was not purely ministerial.

        James also argues that any control he may have exercised
over the SWRP process was “cured” by the review of each
contract conducted by the Newark Corporate Counsel, the City
Clerk’s office and the Municipal Council. A reasonable jury
could have concluded otherwise, however, because James does
not contest that he did not disclose his relationship with Riley.
As established above, there is sufficient evidence for a jury to
have concluded that Appellants had an intimate relationship.
The SWRP contracts for properties expressly prohibited an
official of Newark to “have any personal interest, direct or
indirect, in the Contract.” SA 1530. The Government presented
two witnesses, Joanne Watson (“Watson”), former head of
Newark’s Corporate Counsel’s office, and Augusto Amador, a
Municipal Council member during the time at issue, who stated
that Appellants’ relationship would have been material to their
decision to approve the contracts. Thus, the evidence taken in a
light most favorable to the Government suggests that review of
the contracts by other City government entities could not have
“cured” James’s control over the SWRP process because they
did not possess the information necessary to properly assess the
legitimacy of the contracts.

       Fourth, James argues that any omission of their alleged
relationship was not material because the existence of any
relationship between James and Riley would not have
disqualified Riley from acquiring property. A misrepresentation
or omission is material when it has a “natural tendency to
influence, or [is] capable of influencing, the decision of the

                               28
decisionmaking body to which it was addressed.” United States
v. Wells, 519 U.S. 482, 489 (1997) (quoting Kungys v. United
States, 485 U.S. 759, 770 (1988)). As discussed above, the
Government presented two witnesses who approved Riley’s
contracts—a Municipal Council member and the former head of
the Newark Corporate Counsel’s Office—and both stated that
they would have regarded Riley’s intimate relationship with
James as material to the decision to approve the property
transaction. Watson stated that even if the relationship had been
terminated at the time James signed the contracts it would have
been material to the Corporate Counsel’s decision and thus
should have been disclosed. Consequently, a reasonable jury
could have found James’ omission of his intimate relationship
with Riley was material and thus, even if the relationship would
not have per se barred Riley from acquiring property, it should
have been disclosed.

        Fifth, James argues that there can be no extension of
criminal liability for a fraud where the defendant did not receive
any cognizable benefit because of the non-disclosure. To
support a fraud conviction it is “not necessary for the
Government to demonstrate that [the defendant] personally
benefitted from [the] scheme.” United States v. Goldblatt, 813
F.2d at 624. Even if a benefit to the defendant was required,
however, a reasonable jury could have concluded that James
benefitted through his personal relationship with Riley. By
providing a means for Riley to gain income from the City’s
assets, James was otherwise relieved from expending his own.
Thus, a reasonable jury could have concluded that James did
receive a cognizable benefit even though he did not accept
directly any of the proceeds from Riley’s sale of the properties.

              2.     Riley

        Lastly, Riley argues that she did not have the requisite
intent to commit § 1341 mail fraud (Counts 1–3) and that the
evidence only supported a conclusion that Riley intended to
comply with her contractual obligations as she understood them
with the advice of counsel. In light of the evidence, however, a
reasonable jury could conclude that Riley had the requisite intent

                                29
to defraud. The SWRP contract specifically states that “[t]he
Redeveloper represents and agrees that its purchase of the
Property, and its other undertakings pursuant to the Contract,
are, and will be used, for the purpose of redevelopment of the
Property and not for speculation in land holding.” SA 1456 ¶
17(a). Riley developed two of the four properties from Phase I
in accordance with her obligations under the contract. Riley
submitted pictures of the two redeveloped parcels to support her
application for the Phase II properties, but omitted mention of
the two Phase I properties she sold without renovation. Riley
sold the Phase II properties without making any improvements.
Again, with respect to the Phase III properties, Riley asserted
that she planned to redevelop the properties and that she had
renovated the properties from Phases I and II. Riley again sold
the Phase III properties without undertaking any improvements
to the properties. Juries may infer intent from circumstantial
evidence. See United States v. D’Amato, 39 F.3d 1249, 1256
(2d Cir. 1994) (stating that in determining sufficiency of the
evidence “pieces of evidence must be viewed not in isolation but
in conjunction . . . and the jury’s verdict may be based on
circumstantial evidence” (internal quotation marks and citations
omitted)). Thus, a reasonable jury could have concluded that
Riley’s intent to defraud was demonstrated by her promises to
renovate the SWRP properties and her failure to fulfill those
commitments for all but two of the properties she received.

        Further, for similar reasons, Riley’s intent to defraud is
not abated by any alleged reliance on her lawyers. Riley’s
former attorneys testified that they did not “advise her” that her
activities violated her contractual obligations. If Riley had
discussed the legality of her schemes with her lawyers, and they
advised her that her actions were legal, such evidence might
have refuted her intent to defraud the City of Newark. See
United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991)
(stating in the context of securities law that “conversations with
counsel regarding the legality of his schemes would have been
directly relevant in determining the extent of his knowledge and,
as a result, his intent”). The testimony indicates, however, that
Riley employed the attorneys primarily to help her sell the
properties and neither provided counsel regarding her

                                30
obligations under the SWRP. What the evidence does show, as
mentioned above, is that the SWRP applications and contracts
were clear that Riley had an obligation to renovate the
properties. Riley demonstrated her understanding of this
obligation by her misrepresentation to the Municipal Council
that she renovated the properties she sold and her promises to
undertake such renovations with respect to future properties.
Thus, a reasonable jury could have determined that the evidence
was sufficient to demonstrate Riley’s intent to defraud the City
of Newark even if her lawyers did not advise her of the nature of
her acts.

        In conclusion, a review of the evidence presented at trial
leads us to conclude that a rational jury could have found that
James defrauded the City of Newark and Riley had the requisite
intent to defraud the City.25 The District Court did not err when
it denied a motion for judgment of acquittal based on the
insufficiency of the evidence. In proper deference to the jury’s
verdict, the convictions for Counts 1–4 will be affirmed.

       C.     Joinder and Lack of Severance of Riley’s Tax
              Offense Counts

       We review de novo whether joinder is proper under
Federal Rule of Criminal Procedure 8(b). See Jimenez, 513 F.3d
at 82. We review a district court’s denial of a motion to sever
under Federal Rule of Criminal Procedure 14 for abuse of



       25
         The Government argues that to convict James on Count 4,
the jury was not required to find that he acted with the intent to
defraud or participated in a scheme to defraud. Rather, the
conviction could have been based on a finding that James
“misapplied” City property. The Government argues that the
evidence proved that James misapplied the SWRP properties by
causing them to be transferred to Riley, not for the authorized
purpose of renovation, but so she could improperly receive the
proceeds of flipping the properties, an unauthorized purpose.
Because we find sufficient evidence for the jury to have convicted
James on the basis of fraud we need not address this argument.

                                31
discretion. See Lore, 430 F.3d at 205.

              1.     Joinder of the Land Fraud Counts and
                     the Tax Fraud Counts

        James asserts that the District Court erred in joining the
Land Fraud Counts (Counts 1–5), in which both James and Riley
are implicated, with Riley’s Tax Fraud Counts (Counts 10–13)
under Federal Rule of Criminal Procedure 8(b).26 Rule 8(b)
states:

       The indictment or information may charge 2 or more
       defendants if they are alleged to have participated in the
       same act or transaction, or in the same series of acts or
       transactions, constituting an offense or offenses. The
       defendants may be charged in one or more counts
       together or separately. All defendants need not be
       charged in each count.

Fed. R. Crim. P. 8(b). Under Rule 8(b) there must be a
“transactional nexus” between the defendants for the counts to
be properly joined. See Jimenez, 513 F.3d at 82–83.
Additionally, there is a strong preference to try defendants
named in a single indictment together in order to “conserve state
funds, diminish inconvenience to witnesses and public
authorities, and avoid delays in bringing those accused of crime
to trial.” Id. at 82 (quoting United States v. Lane, 474 U.S. 438,
449 (1986)).

       James argues that Riley’s tax offenses were completely
separate from the fraud counts and thus were not within the
purview of Rule 8(b). Despite James’s contention, “[j]oinder of
tax and non-tax claims is not unusual.” United States v. McGill,



       26
         We note that on appeal James asserts only that he was
prejudiced by joinder of Riley’s Tax Fraud Counts (Counts 10–13)
and not Riley’s Housing Fraud Counts (Counts 6–9). Thus, we will
addresses the issue of joinder of Riley’s Tax Fraud Counts (Counts
10–13) only.

                                32
964 F.2d 222, 241 (3d Cir. 1992). “It is appropriate to combine
tax charges against one defendant with fraud charges against that
same defendant and other codefendants if the tax evasion
charges arise directly out of the common illicit enterprise.”
United States v. Bibby, 752 F.2d 1116, 1121 (6th Cir. 1985).

       In this case, it was Riley’s failure to report income earned
from the land fraud scheme that led to her Tax Fraud Counts.
Because the tax evasion arose directly from the land fraud
proceeds, it was in the interest of judicial efficiency to join these
claims. See Jimenez, 513 F.3d at 82. Thus, the District Court
properly joined the Land fraud Counts and Riley’s Tax Fraud
Counts under Federal Rule of Criminal Procedure 8(b).

              2.      Motion For Severance

        James argues that the District Court abused its discretion
when it denied his motion for severance because the inclusion of
the Tax Fraud Counts prejudiced the jury against him.27 The
Federal Rules of Criminal Procedure permits a court to sever
counts that have been properly joined under Rule 8(b) “[i]f the
joinder of offenses or defendants in an indictment . . . appears to
prejudice a defendant . . . .” Fed. R. Crim. P. 14. Severance
should only be granted “if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants,
or prevent the jury from making a reliable judgment about guilt
or innocence.” United States v. Urban, 404 F.3d 754, 775 (3d
Cir. 2005) (quoting Zafiro v. United States, 506 U.S. 534, 539
(1993)). A defendant must “pinpoint clear and substantial
prejudice resulting in an unfair trial.” United States v. McGlory,
968 F.2d 309, 340 (3d Cir. 1992) (internal quotation marks and
citation omitted). Thus, “[i]t is not enough to show that
severance would have increased the defendant’s chances of
acquittal.” Id.



       27
         It is not entirely clear from James’ brief whether he is
appealing the District Court’s denial of severance. The Court has
chosen to address the issue as if James had raised the discretionary
issue properly on appeal.

                                 33
        In this case James has not pinpointed any specific
instance of substantial prejudice resulting in an unfair trial.
Rather, James merely asserts that the jury was unable to
compartmentalize the evidence. Juries, however, “are presumed
to follow their instructions.” Zafiro, 506 U.S. at 540–41 (citing
Richardson v. Marsh, 481 U.S. 200, 211 (1987)). The District
Court specifically instructed the jury that it “must separately
consider the evidence against each defendant on each offense
charged, and . . . must return a separate verdict for each
defendant on each offense.” SA 1196:34. These strict
instructions are “persuasive evidence that refusals to sever did
not prejudice the defendants.” Lore, 430 F.3d at 206 (internal
quotation marks and citation omitted). Thus, there was no
“serious risk” of “compromis[ing] a specific trial right” by
keeping the Land Fraud Counts and the Tax Fraud Counts
joined. Urban, 404 F.3d at 775 (internal quotation marks and
citation omitted). The simple fact that the evidence produced at
trial was “not germane to all counts against” James, does not
entitle James to a separate trial. United States v. Console, 13
F.3d 641, 655 (3d Cir. 1993); accord McGlory, 968 F.2d at 340
(“[T]he mere introduction of other crimes evidence against one
defendant does not entitle a co-defendant to a separate trial.”).

        In conclusion, Riley’s Tax Fraud Counts were properly
joined initially with the Land Fraud Counts because the counts
were substantially related as the tax fraud arose from Riley’s
failure to report her income from the land fraud scheme.
Additionally, the District Court did not abuse its discretion when
it denied James’s motion for severance because James did not
point to any specific prejudice. Further, any prejudice that might
have resulted from the joint trial was easily cured by the District
Court’s jury instructions.

       D.     Motion for Mistrial

       James argues that the District Court abused its discretion




                                34
when it denied his motion for mistrial.28 “We review the denial
of a motion for a mistrial based on a witness’s allegedly
prejudicial comments for an abuse of discretion.” Lore, 430
F.3d at 207 (citing United States v. Xavier, 2 F.3d 1281, 1285
(3d Cir. 1993)). Three factors must be analyzed to determine
whether the defendant was prejudiced: “(1) whether [the
witness’s] remarks were pronounced and persistent, creating a
likelihood they would mislead and prejudice the jury; (2) the
strength of the other evidence; and (3) curative action taken by
the district court.” Lore, 430 F.3d at 207 (citing Xavier, 2 F.3d
at 1285).

       At issue is the testimonial statement of Basil Franklin,
James’s Chief of Housing Production for the City of Newark,
about a meeting he had with Jackie Mattison (“Mattison”),
James’s former Chief-of-Staff. Mattison had been convicted of
a criminal offense, United States v. Bradley, 173 F.3d 225 (3d
Cir. 1999), and was serving a sentence of work release when he
met with Franklin. The District Court instructed the
Government to direct Franklin not to mention that Mattison had
been incarcerated or in a work release program, which would
imply that Mattison had been previously convicted of a crime.
During the course of the Government’s direct examination of
Franklin, however, Franklin twice mentioned that Mattison was
involved in a work release program.29 James immediately


       28
         We note that although Riley joined the motion for mistrial
in sidebar, she does not appear to appeal the denial.
       29
            The testimony proceeded as follows:

   [Prosecutor]: So what happened when you and Jackie Mattison
                 met in the furniture store
   [Witness]:    He told me that he was on a work release
                 program.
   [Prosecutor]: I’ll move to strike that.
                 What, if anything, did Jackie Mattison tell you
                 about property?
   [James’s attorney]: Your honor, may we approach, please?
   [The Court]: In a moment, in a moment.

                                 35
moved for a mistrial.

        The District Court denied James’s motion for a mistrial,
but agreed to give a curative instruction at defense counsel’s
request. The District Court took a ten minute break to allow
counsel to speak with James and decide. After the break,
defense counsel chose not to ask for an instruction from the
court because he did not want to exacerbate any alleged
prejudice. The witnesses’s testimony resumed, lasting the rest of
the day and into the following two days. At the conclusion of
the trial, the District Court instructed the jury that James was not
being charged with doing anything unlawful with Mattison, nor
was he involved in the conduct that placed Mattison on work
release.

        Addressing the three-factor test to determine prejudice we
look to the nature of the statement first. Franklin’s improper
remarks consisted of two references to a “work release program”
in testimony that spanned three days over the course of a five
week trial. Thus the remarks cannot be characterized as either
pronounced or persistent, nor were they systematic. See United



   [Prosecutor]: What, if anything, did Jackie Mattison tell you
                 about property?
   [Witness]:    He told me that he was in the work release
                 program and participate–
   [James’s attorney]: Judge, may we approach?
   [Prosecutor]: May I Lead, your Honor?
   [The Court]: Yeah. Just ask him–just with respect to the
                 property, did he have any conversations with you
                 just as to property?
   [Witness]:    Yeah. He told me that–that–he said–
   [Prosecutor]: Did–
   [Witness]:    He said that he needed–
   [The Court]: All right, just a moment.
   [Witness]:    –an income.
   [The Court]: We’ll have a break.

SA 211:104–05.

                                36
States v. Morena, 547 F.3d 191, 194 (3d Cir. 2008) (finding
prejudicial misconduct because of the prosecutions “systematic
injection of evidence of drug use and dealing” by the defendant);
Lore, 430 F.3d at 207 (considering one improper remark by a
witness over the course of five days of testimony to not be
“pronounced and persistent”); Xavier, 2 F.3d at 1285 (finding
that five or six angry outbursts by a witness were neither
pronounced nor persistent).

       Second, there is no question that the jury did not solely
rely upon the fact that Mattison was on work release or that
Franklin met with Mattison to convict James. The relevance of
the evidence was merely to demonstrate James’s control over the
SWRP properties. There was a significant amount of evidence
presented to prove James’s control over the properties and the
SWRP process. See discussion supra Part I.A.2; see also
Morena, 547 F.3d at 196 (finding that the “other evidence” was
insufficient to overcome the prejudice and sustain a conviction
because it consisted only of “the testimony of one witness who
[had] significant credibility issues and a few items of
circumstantial evidence”). In this case, the strength of the other
evidence is sufficient to outweigh any possible prejudice
Franklin’s statements may have inflicted on James.

       Finally, the third factor addresses whether curative action
taken by the lower court mitigates any potential prejudice. In
this case the District Court indicated that it was willing to give
immediate curative instructions, but James declined the offer to
prevent further attention being drawn to Franklin’s statements.
At the end of the trial, however, the District Court instructed the
jury that “[t]here is no charge in this Indictment that the
Defendant Sharpe James did anything unlawful, directly or
indirectly, with respect to the sale of any Newark property to
Jackie Mattison.” These instructions are presumed to have
cured any potential prejudice from Franklin’s improper remarks.
See Lore, 430 F.3d at 207 (finding no prejudice, in part, because
although the defendant “declined the district court’s offer to
issue a specific curative instruction at the time of [the witness’s]
statement, the court subsequently instructed the jury” in a
manner which sought to cure any prejudice).

                                 37
       In conclusion, Franklin’s comment that Mattison was on
work release did not prejudice James because the statements
were not “pronounced and persistent,” the strength of the other
evidence was sufficient to convict James, and the District Court
cured any potential prejudice through its instructions to the jury.
Consequently, the District Court did not abuse its discretion
when it denied James’s request for a mistrial.

       E.      Alleged Hearsay Statement

        James argues that the District Court erred by admitting a
hearsay statement during the course of Franklin’s testimony.
“We review a district court’s decision to admit or exclude
evidence for abuse of discretion, although our review is plenary
as to the district court’s interpretation of the Federal Rules of
Evidence.” Marra v. Phila. Hous. Auth., 497 F.3d 286, 297 (3d
Cir. 2007).

        At issue is Franklin’s testimony that Alfred Faiella
(“Faiella”), the Deputy Mayor and Director of the DEHD, came
to his office with Riley and another woman and “smiling and
jokingly [said] that the Mayor want[ed Franklin] to help these
ladies acquire some property.” From this statement Franklin
testified that he understood it to mean that “the Mayor want[ed
him] to . . . vet her and assist her, if possible, in acquiring
property.” James objected to Franklin’s statement, and argues
on appeal that the statement is inadmissible because Faiella was
not acting lawfully when he made the comment and thus, was
not acting within the scope of his employment.30

      The District Court allowed Franklin’s testimony as a non-
hearsay statement admissible under Federal Rule of Evidence



       30
         James does not argue that his own statement to Faiella was
inadmissible. We assume, therefore, that James’s statement was
properly admitted under Federal Rule of Evidence 801(d)(2)(A),
which states that “[a] statement is not hearsay if . . . [t]he statement
is offered against a party and is . . . the party’s own statement, in
either an individual or representative capacity.”

                                  38
801(d)(2)(D). Rule 801(d)(2)(D) states that “[a] statement is not
hearsay if . . . [t]he statement is offered against a party and is . . .
a statement by the party’s agent or servant concerning a matter
within the scope of the agency or employment, made during the
existence of the relationship.” 31 Fed. R. Evid. 801(d)(2)(D).
Thus, this rule requires that when making an admission on
behalf of the defendant, the declarant be both authorized and
acting within the scope of employment.

       Faiella was the Deputy Mayor and Director of the DEHD
and thus was authorized to direct Franklin as to who should be
considered for SWRP properties. Franklin testified that Faiella
had the final say on all property allocations and that “everything
went through Alfred Faiella.” Franklin also indicated that “from
time to time [Faiella] would mention that X, Y, or Z person
recommended that we try to . . . to vet a person to do the
development.” Consequently, as Franklin’s supervisor, it was
within the scope of Faiella’s employment to instruct Franklin of
his duties regarding SWRP properties. See Marra, 497 F.3d at
297–98 (“[B]eing a direct decision-maker, of course, constitutes
strong proof that a statement was made within the scope of
employment[.]” (internal quotation marks and citation omitted));
Ryder v. Westinghouse Elec. Corp., 128 F.3d 128, 134 (3d Cir.
1997) (holding that executives who had authority to make
personnel decisions were acting within the scope of their
employment when they stated their views on the state of the
workforce).

        Despite James’s assertion, a statement of illegal activity
can still be within the scope of employment and can be
admissible under 801(d)(2)(D). See Cline v. Roadway Express,
Inc., 689 F.2d 481, 488 (4th Cir. 1982) (holding that testimony
of certain managers’ statements indicating that they understood



       31
         James’s brief mentions Federal Rule of Evidence
801(d)(2)(C), while discussing the test of agency. Because this
rule is not mentioned anywhere else in James’s submissions, and
the District Court allowed the statement in under 801(d)(2)(D), the
Court assumes that the reference to 801(d)(2)(C) was in error.

                                   39
the new policy was designed to replace older workers with
younger ones, which was an alleged violation of the Age
Discrimination in Employment Act, was admissible under Fed.
R. Evid. 801(d)(2)(D) as admissions of agents concerning a
matter within the scope of their employment). In sum, the
District Court did not err in its interpretation of the Federal
Rules of Evidence when it admitted Franklin’s testimony of
Faiella’s statement on the basis that it constituted a non-hearsay
utterance of an agent, which is admissible under Federal Rule of
Evidence 801(d)(2)(D).

              F.     The Government’s Summation Remark

        James argues that the United States’ inappropriate
comment during its rebuttal summation “merely capped an
avalanche of unfairness” that warrants reversing the
conviction.32 Because James did not seek a mistrial in the
District Court challenging the Government’s closing remark, this
court reviews the District Court’s decision not to grant a mistrial
sua sponte for plain error. Virgin Islands v. Charleswell, 24 F.3d
571, 576 (3d Cir. 1994). A plain error occurs when the
“prosecutor’s comments [are] so serious as to ‘undermine the
fundamental fairness of the trial and contribute to a miscarriage
of justice.’” United States v. Pungitore, 910 F.2d 1084, 1126 (3d
Cir. 1990). Thus, we may reverse if the prosecutor’s comments
deprived James of a fair trial.

       There is no per se rule against invitations to a jury to
“send a message.” Greenleaf v. Garlock, Inc., 174 F.3d 352, 364
n.9 (3d Cir. 1999). The type of counsel misconduct that
warrants granting a new trial is not generally a single isolated
inappropriate comment, but rather repeated conduct that
“permeate[s]” the trial. Blanche Rd. Corp. v. Bensalem Twp.,



       32
         The prosecutor stated in its rebuttal summation that, “[a]t
the end of the day you have a decision to make. Are you going to
turn your head away from this type of corruption, say it’s business
as usual, what can I do? Or are you going to make a statement, say
it loud and clear, send a message.” SA 1183:193–94.

                                40
57 F.3d 253, 264 (3d Cir. 1995), overruled on other grounds by
United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316
F.3d 392, 400 (3d Cir. 2003). Although his complaint suggests
it occurred, James does not point to specific conduct of a similar
nature which allegedly permeates the case. While the
Government concedes that the prosecutor’s “send a message”
comment was improper, there was an immediate and sustained
objection that cut off the prosecutor’s remarks. Further, the
District Court directly addressed the inappropriate nature of the
“send a message” comment in its instructions to the jury. The
District Court, in its curative jury instruction given the day after
the prosecutor’s comment, stated that

       you must not think of your verdict as sending a message
       to anyone. Yesterday you heard me sustain an objection
       to [the prosecutor’s] suggestion in summation that you
       should “send a message” by your verdict.
               I sustained the objection because this was an
       improper comment. You must reach your verdict in this
       case based solely on the evidence, on the facts as you
       determine them based on the law as I present it to you
       now, without concern for public opinion or anything else
       outside of this case. That is what the law requires.

SA 1191:14. This jury instruction clearly addressed the
improper comment and thus even if there were some risk of
prejudice it was cured because “juries are presumed to follow
their instructions.” Richardson v. Marsh, 481 U.S. 200, 211
(1987). In sum, the prosecutor’s statement did not deprive
James of a fair trial, and there was no plain error.

III.   Conclusion

        In conclusion, in light of the Supreme Court’s recent
decision in Skilling, we will reverse the Count 5 convictions as
to James and Riley. We will affirm the Counts 1–4 convictions
as to James and Riley because there is sufficient evidence from
which the jury could have found Appellants guilty beyond a
reasonable doubt. Finally, we affirm the District Court’s denial
of James’s post-trial motions and do not find that the District

                                 41
Court erred in any of the challenged determinations. We will
remand for the District Court to perform any re-sentencing
necessitated by the Count 5 reversal.




                              42
