                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-3-2002

USA v. Milan
Precedential or Non-Precedential: Precedential

Docket No. 01-2603




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PRECEDENTIAL

         Filed September 3, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2603

UNITED STATES OF AMERICA

v.

MILTON MILAN

         Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Crim. No. 00-194)
District Judge: Honorable Joel A. Pisano

Argued May 20, 2002

BEFORE: BECKER, Chief Judge,
GREENBERG, Circuit Judge, and
BARZILAY, Judge, U.S. Court of International Trade*

(Filed: September 3, 2002)

         Richard Coughlin (argued)
         Julie A. McGrain
         Office of the Federal Public Defender
         800 Hudson Square
         Suite 350
         Camden, NJ 08102

          Attorneys for Appellant
_________________________________________________________________

*Honorable Judith M. Barzilay, Judge, United States Court of
International Trade, sitting by designation.




         Robert J. Cleary
         United States Attorney
         970 Broad Street, Room 700
         Newark, N.J. 07102-2535

         Norman Gross (argued)
         Assistant United States Attorney
         George S. Leone (argued)
         Chief, Appeals Division
         Office of the United States Attorney
         Camden Federal Building and
         United States Courthouse
         401 Market Street, Fourth Floor
         Camden, NJ 08101
          Attorneys for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This case comes on before this court on appeal from a
final judgment of conviction and sentence entered in the
district court following defendant-appellant Milton Milan’s
conviction by a jury on 14 counts of mail fraud, wire fraud,
money laundering, and related criminal conspiracies in part
for his activities undertaken while in public office. The
district court sentenced Milan, the former mayor and city
council president of the City of Camden, New Jersey, to 87
months imprisonment.

On appeal, Milan advances three grounds to overturn his
conviction on all counts. First, he contends that under
Matson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986),
the district court erred in finding that the government’s
decision to exercise a peremptory challenge to a juror was
not motivated by discriminatory intent. In the alternative,
Milan maintains that the district court misapplied the legal
standards the Supreme Court enunciated in Batson by
improperly deferring to the prosecution’s proffered
legitimate justifications for using three of four of its
peremptory challenges to strike African-American jurors
from the panel. Lastly, Milan suggests that the district

                                2


court erred by using the phrase "moral certainty" in its jury
charge on reasonable doubt.

Milan also challenges specific counts of his conviction.
First, he argues that we should reverse his conviction on
counts 3 and 9 (wire fraud and conspiracy arising out of
his illegal receipt of monies and other benefits during his
tenure in office) because the government premised its case
largely on testimony from a cooperating witness without
disclosing material impeachment evidence (tape recorded
conversations) in violation of Brady v. Maryland , 373 U.S.
83, 83 S.Ct. 1194 (1963), which imposes a duty on the
government to provide the defense with potential
exculpatory or impeachment evidence. Second, Milan
argues that we should reverse his conviction on counts 3,
9, 15, 16, and 17 because the government improperly
vouched for the credibility of key witnesses whose
testimony advanced Milan’s convictions on those counts.

Finally, Milan maintains that we should vacate his
sentence and remand the case for resentencing because the
district court erred in applying a 3-level upward departure
for Milan’s acts of public corruption under U.S.S.G.
S 2C1.7, Application Note 5, to the final combined offense
level after grouping rather than to the offense level
established for the public corruption charges only.
The panel unanimously agrees that the judgment of
conviction should be affirmed on all counts and thus
unanimously joins in all aspects of the opinion except for
section II. E. "3-Level Upward Departure." Judge
Greenberg, however, believes that the judgment should be
reversed to the extent that it imposed the sentence and
thus is filing a separate opinion dissenting from the
affirmance of the sentence.

I. BACKGROUND

A. Milan’s Crimes in his Private Capacity

The evidence at the trial demonstrated the following.1 In
_________________________________________________________________

1. We point out that Milan does not challenge the sufficiency of the
evidence to support his conviction.

                                3


October 1992, Milan formed the Atlas Contracting
Company ("Atlas") with his friend, Gholam H. Darakhshan,
to undertake commercial and residential construction
projects in the Camden area. On August 11, 1994, Atlas
obtained a contract for the construction of 13 homes at
Arthur’s Court in Camden. Inasmuch as the contract
required Atlas to secure a performance and payment bond,
it entered into a surety arrangement with Amwest Surety
Insurance Company in which Amwest agreed to issue
bonds for each phase of construction. Amwest, however,
required Atlas to post collateral as a condition for Amwest
issuing the bonds.

To satisfy this obligation to post security, Milan and
Darakhshan borrowed $65,000 in cash from Jose Rivera,
the owner of an automotive parts store which functioned in
part as a front to launder the profits of local drug dealers.
Realizing that Rivera had obtained the loan money from
nefarious activities, Milan and Darakhshan concocted a
scheme to utilize the narcotics-related proceeds without
arousing the suspicions of the Internal Revenue Service to
which, by law, domestic currency transaction reports for
cash deposits of $10,000 or more must be sent.
Specifically, they divided the cash into amounts of less than
$10,000 which they distributed to friends and relatives
who, in turn, transferred the money to Atlas in the form of
bank checks or personal checks. Milan and Darakhshan
also deposited some of the cash directly into an Atlas
account. They then purchased a $60,900 certificate of
deposit from a bank in Camden and assigned it to Amwest
as collateral security. Subsequently, over the course of a
few months, Milan and Darakhshan issued a series of
checks in amounts of less than $10,000 made out from
Atlas to themselves or to various friends and family
members as ostensible "loan repayments."2 Milan and
Darakhshan eventually cashed the checks and repaid
Rivera the $65,000 together with $10,000 in interest.
In addition to money laundering, Milan and Darakhshan
used Atlas to perpetrate insurance fraud. In June 1994 and
_________________________________________________________________

2. Milan and Darakhshan wrote the words "loan repayments" on the
memo lines of some checks.

                                4


February 1995, Atlas entered into an agreement with AT&T
Capital Leasing Corporation for the lease of two computers,
two printers, and one copy machine. Atlas then secured
commercial property insurance from Selective Insurance
Company to protect against loss or damage to the
machines.

On December 31, 1995, Milan and Darakhshan staged a
sham burglary of the Atlas office, removing property and
breaking a window. They later filed a false stolen property
report with the Camden police and a lost property
worksheet with the insurance company. Atlas received
$4,743.50 from Selective in satisfaction of the false claim.
Milan kept one of the computers for personal use until
August 1997, when he sold it to a former student intern.

B. Milan’s Crimes as a Public Official

Milan was elected a member of the Camden city council
on November 7, 1995, and was elected its president on
January 1, 1996. On May 13, 1997, Milan was elected
mayor of Camden, a position to which he was sworn in on
July 1, 1997.

In March 1996, Milan met Daniel Daidone, an associate
of Ralph Natale, a notorious organized crime boss in
Philadelphia. Natale previously had recruited Daidone and
Caesar Ortiz, a Puerto-Rican businessman and electrical
contractor, to manage and operate Trans-Aero, a
government certified minority-owned business enterprise
which was to compete for government contracts on Natale’s
behalf.

Correctly anticipating that Milan would be receptive to
accepting kickbacks in exchange for helping Trans-Aero
secure business projects in Camden, Daidone delivered an
initial payment of $500 in cash to Milan, a transaction he
reported to Natale. Thereafter, Daidone, acting on Natale’s
behalf, continued to deliver periodic bribes to Milan
(occasionally at his office in Camden City Hall) until Milan’s
arrest in June 1998. All told, Milan received between
$30,000 and $50,000 in cash, including a $1,433 payment
toward a January 1998 Florida vacation for himself and his
then fiance. Milan, in turn, did numerous favors for Natale
and his organized crime associates, including lobbying on

                                5


their behalf to secure federally-subsidized construction
contracts in a Camden empowerment zone, attempting to
contact the mayor of Cherry Hill, New Jersey, to obtain a
liquor license for a restaurant owned by one of Natale’s
associates, and arranging a meeting between Natale’s
associates and government officials presiding over Camden
waterfront renovation projects.3

In addition to cash, Milan received other improper
benefits during his tenure in public office. On December
16, 1996, Milan arranged to have the title of a 1990
Chevrolet Lumina Van transferred to his fiance from Nick’s
Towing, an outfit which provided towing services to the City
of Camden.4 Milan also obtained approximately ten months
free use of a 1996 GMC Jimmy truck leased to Dominick
Monaco, the owner of Nick’s Towing. On March 27, 1997,
the city council of Camden awarded a contract to Nick’s
Towing to provide towing services for a two-year term at a
contract price not to exceed $480,000. Milan did not
disclose publicly his receipt of these gifts from Nick’s
Towing on his state-mandated financial disclosure
statements.

In June 1997, the James B. Ryan Air Conditioning
Company executed a three-year contract with the City of
Camden for the servicing and maintenancing of air
conditioning and heating systems in various city-owned
buildings. In May 1998, at Milan’s request, the company
installed an air conditioning system at Milan’s personal
residence. Milan did not pay for these services and did not
disclose his receipt of them on his financial disclosure
statements. The services, valued at $3,346, took two men
six days to complete.

In April 1998, a concrete recycling company, Delaware
River Recycling, applied to the Camden County Solid Waste
Advisory Council for a permit to operate a recycling facility.
That same month, Milan asked Robert Casey, the owner of
Delaware River Recycling, to do home improvement work at
_________________________________________________________________

3. The Cherry Hill mayor did nothing improper and did not support the
application.

4. Nick’s effectuated the transfer through a third party.

                                6


Milan’s private residence. Casey obliged, sending a work
crew to tear down a garage and remove a tree. Casey also
paid $700 for the installation of new carpeting at Milan’s
home. Milan, who did not pay for these services, wrote a
letter in his official capacity on September 3, 1998,
supporting the application of Delaware River Recycling.
Casey forwarded the letter to the Camden County Solid
Waste Advisory Council. As in the other instances we have
recounted with respect to improper benefits, Milan did not
disclose his receipt of these gifts from Casey.

In July 1998, Milan received an estimate from R&G Home
Improvement for the installation of new windows at his
residence. R&G, owned and operated by Ralph Cruz Sr. and
Ralph Cruz Jr., provided a figure that included costs for
materials and supplies but not for labor, with the
anticipation that Milan in turn would take the necessary
steps to expedite payments owed to R&G for work it had
done for the City of Camden. Sure enough, on August 14,
1998 (five days after R&G submitted its estimate), Milan
arranged a meeting among himself, Ralph Cruz Sr., Ralph
Cruz Jr., and the director of the Camden Housing Services
Department to discuss the unpaid bills. From September
until December 1998, R&G installed approximately 25 new
windows at Milan’s home without charging Milan for the
$1,800 in labor costs it incurred.

Milan abused his public office in other, more creative
ways. In April 1997, he established with the New Jersey
Election Law Enforcement Commission a Joint Candidates
Committee ("JCC") to raise campaign funds for three city
council candidates politically affiliated with him. Milan
installed his aide, Milton Bradley, as JCC treasurer. Milan
later informed Bradley that he and several of his political
supporters would be taking a celebratory vacation to Puerto
Rico after the May 1997 city council elections. He then
directed Bradley to finance the trip with funds from the
JCC. Milan and Bradley devised a scheme to disguise the
disbursement as a legitimate business expense for the JCC.
They asked Mark Willis, the owner of the Camden office
building in which Milan’s mayoral campaign headquarters
was located, to draft a fake lease to demonstrate that
monthly lease payments were due from Milan’s campaign

                                7


even though Milan’s campaign was using Willis’s office
space without charge.

On May 1, 1997, flights and hotel reservations for this
trip were booked through a travel agency for 15 people,
including Milan and his fiance. The group vacationed in
Puerto Rico from May 16 to May 20, 1997, with expenses
charged on the personal American Express account of a
Camden attorney. Upon his return, Milan had Bradley draw
a check for $7,500 on the JCC bank account payable to
Willis’s management company. On June 4, Willis deposited
the check into his corporate bank account and, through a
series of transactions with third parties, obtained $7,500 in
cash proceeds from the check. On June 12, Willis gave
$5,000 to Bradley and $2,500 to Milan. Bradley, in turn,
gave the $5,000 to the attorney as a partial repayment for
vacation expenses.

As a public official, Milan was required under New Jersey
state law to complete an annual financial disclosure
statement detailing his business interests and sources of
income. Milan completed, signed, and mailed those forms
in 1997, 1998, and 1999, but, as we have indicated, failed
to mention his receipt of the benefits we have described.
C. Procedural History

On March 23, 2000, a grand jury sitting in Camden
returned a 19-count indictment against Milan. A
superseding indictment was returned on July 12, 2000.
Counts 1 through 8 charged a scheme to defraud the public
of Milan’s honest services as a public official in violation of
the mail and wire fraud acts, 18 U.S.C. SS 1341, 1343,
1346, and 2. Specifically, counts 1, 4, and 8 involved the
mailing of Milan’s financial disclosure statements, count 2
involved a phone call between Daidone and Milan (during
which Milan asked Daidone to supply him with
"resources"), count 3 involved a January 2, 1998 fax
transmission from a travel agency concerning Milan’s trip
to Florida, and counts 5 and 6 involved Milan’s letter to
Robert Casey supporting the application of Delaware River
Recycling for a recycling permit.

Count 9, involving conduct while Milan was in public
office from March 1996 until June 1998, charged a

                                8


conspiracy to travel and use interstate facilities to solicit
and accept bribes to influence a public servant in violation
of 18 U.S.C. S 371. Counts 10 and 11 charged Milan with
conspiracy and extortion under 18 U.S.C. S 371 and 18
U.S.C. S 1951(a), alleging that Milan threatened to remove
the municipal public defender from office unless he
contributed $5,000 to a political action committee aligned
with Milan.

Counts 12, 13, and 14 charged Milan with using political
campaign contributions to pay for the Puerto Rico vacation
in violation of the mail and wire fraud acts, 18 U.S.C.
SS 1341, 1343, 1346, and 2. Specifically, count 12 was
predicated on a phone call from a domestic travel agency to
a hotel in Puerto Rico, count 13 on a computer request for
an airline ticket from an airline in Tulsa, Oklahoma, and
count 14 on a mailed $7,000 check payable to a credit card
company.

Counts 15, 16, and 17 charged a conspiracy to structure
currency transactions in violation of 18 U.S.C.S 371, a
conspiracy to commit money laundering in violation of 18
U.S.C. S 1956(h), and money laundering in violation of 18
U.S.C. S 1957(a). These charges pertained to Milan’s
financial transactions involving the $65,000 loan from Jose
Rivera to Atlas Contracting Company. Finally, counts 18
and 19 charged mail fraud in violation of 18 U.S.C.SS 1341
and 2, predicated on Milan’s use of the mail in connection
with his staged burglary of Atlas to collect insurance
proceeds.

Jury selection commenced on October 23, 2000. During
the final selection process Milan’s attorney raised an
unsuccessful Batson objection to the government’s use of
its peremptory challenges. The evidence portion of the trial
began on November 6, 2000, and was concluded on
December 21, 2000. The jury convicted Milan on all counts
except 2, 5, 6, 10, and 11.5

Following the verdict, the court at Milan’s request
removed his trial attorney and appointed the Federal Public
_________________________________________________________________

5. The jury acquitted Milan on counts 10 and 11 and was unable to
reach a verdict on counts 2, 5, and 6.

                                9


Defender to file post-verdict motions and represent Milan at
sentencing. In May 2001, Milan’s new attorney wrote a
letter to the prosecutor requesting copies of taped
conversations (or evidence documenting their disclosure to
his prior attorney) of Natale during his incarceration from
October to December 1999. The tapes, recorded by the
Bureau of Prisons, allegedly indicated, among other things,
that Natale expected an early release as a result of his
agreement to cooperate with the government. Milan
subsequently moved for a new trial on the counts to which
Natale’s testimony was directed (3 and 9) on the grounds
that the government’s failure to disclose the tapes, germane
for impeachment purposes at Milan’s trial, violated Brady
and the Jenks Act, 18 U.S.C. S 3500. The district court
denied the motion, concluding that the tapes were
sufficiently immaterial such that their non-disclosure did
not undermine the integrity of the verdict to warrant a new
trial.

On June 15, 2001, the district court sentenced Milan to
87 months imprisonment, in part arriving at this figure by
departing upwards 3 levels by reason of Milan’s pervasive
and systematic corruption of a government function. Milan
unsuccessfully objected to the court’s sequencing
methodology, arguing that the departure should have been
added only to the counts grouped as corruption-related
rather than to the combined, total offense level calculated
after grouping. If the court had accepted Milan’s argument
his sentence range would have been lower. The court
entered the judgment of conviction and sentence on June
15, 2001, and Milan subsequently filed a timely appeal. We
have jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C.
S 3742(a), eand the district court exercised subject matter
jurisdiction pursuant to 18 U.S.C. S 3231.

II. DISCUSSION

A. Batson Challenges

In one of his two Batson challenges, Milan argues that
the district court erred in concluding that the government’s
decision to strike one of the jurors was not motivated by
discriminatory intent. We review a court’s finding of fact on

                                10
this issue for clear error, United States v. Uwaezhoke, 995
F.2d 388, 394 (3d Cir. 1993), and thus will accept its
factual determination unless it "either (1) is completely
devoid of minimum evidentiary support displaying some
hue of credibility, or (2) bears no rational relationship to the
supportive evidentiary data." Haines v. Liggett Group, Inc.,
975 F.2d 81, 92 (3d Cir. 1992) (quoting Krasnov v. Dinan,
465 F.2d 1298, 1302 (3d Cir. 1972)).

Owing to the high publicity surrounding the case, the
district court conducted an individual voir dire, questioning
the 71 prospective jurors directly and allowing the
attorneys to ask follow-up questions. After dismissals for
cause and hardship, the court seated 12 individuals from
the final pre-qualified pool at random. At this point, both
the defense and prosecution initiated their exercise of
peremptory challenges. The government utilized three of its
first four challenges to strike African-Americans, Ms.
Hargis, Ms. Gorrell, and Mr. Robinson, and used one
challenge to strike a Caucasian.6 It also exercised two
peremptory challenges to strike Caucasian potential
alternates.

After the fifth round of peremptories (during which the
government struck Mr. Robinson), Milan raised a Batson
objection at a bench conference. Under Batson and its
progeny, courts should evaluate a claim of an equal
protection violation7 in jury selection using the following
three-step process: (1) has the objector established a prima
facie case by demonstrating a pattern of peremptory
challenges of jurors of a particular race?; (2) if yes, did the
party defending the challenges rebut the prima facie case
by tendering a race-neutral explanation for the strikes?; (3)
_________________________________________________________________

6. Under Fed. R. Crim. P. 24, the government has six peremptories and
the defense ten. Both sides had two peremptories to challenge potential
alternates.

7. In Batson, which involved a state prosecution, the Supreme Court
construed the Fourteenth Amendment’s Equal Protection Clause, which
does not itself govern federal prosecutions. Nonetheless, the Batson
analysis governs this case because the Fifth Amendment which does
apply to the federal government generally requires the same equal
protection analysis as in Fourteenth Amendment cases. See, e.g., United
States v. Leslie, 813 F.2d 658, 659 (5th Cir. 1987) (en banc).

                                11


if so, has the objector carried his burden of proving
purposeful discrimination, for instance by showing that the
proffered explanation is pretextual. See Hernandez v. New
York, 500 U.S. 352, 358-359, 111 S.Ct. 1859, 1866 (1991)
(citing Batson).

Nevertheless, even before the district court evaluated
whether Milan had presented a prima facie case, the
government, as is common in the context of a Batson
objection, immediately responded by stating a race-neutral
explanation for each of its contested challenges. The
government noted that Ms. Hargis had lived her adult life
primarily in Essex County in northern New Jersey and had
moved to southern New Jersey, where Camden is located,
only three years earlier. Consequently, it stated a concern
that she would not "blend" with the remaining jurors who
were far more familiar with the local geography and had a
higher level of interest in and familiarity with the
community issues relevant to Milan’s trial. The prosecutor
explained that Ms. Gorrell had indicated holding religious
beliefs that interfered with her ability to pass judgment on
other people. Finally, the prosecution emphasized that Mr.
Robinson had substantial difficulty answering a number of
the questions and acknowledged being unsure of what
"impartial" meant. The prosecution elaborated that it was
not confident of his ability to follow the nuances and
complexities of a case which included 19 counts, some
involving fairly intricate financial transactions, over 70
witnesses, and hundreds of exhibits.

The court rejected Milan’s Batson objections, informing
the parties that it would make further rulings after the
completion of jury selection. Thereafter, when revisiting the
issue, the court made the following findings. First, agreeing
that the government’s explanations were indeed facially
neutral with respect to race, the court noted that the
prosecutors had made no statements during voir dire which
would indicate any latent bias against African-Americans.
Second, the court noted that the government had chosen
not to strike three other African-Americans who were
seated in the final jury. Finally, the court made a credibility
determination with respect to the prosecutors, holding that
their reasons were genuine and made in "good faith" rather

                                12


than being pretextual to camouflage a race-conscious
motive percolating beneath.

Milan now focuses his argument on the finding with
respect to Ms. Hargis. The court, in evaluating the
government’s stated motivation for striking Ms. Hargis --
her inability to "blend" with the other jurors because of her
lack of familiarity with south Jersey -- to some extent
agreed with the defense that the reasoning seemed
somewhat attenuated considering that nothing else in her
background suggested an inability to function adequately
as a juror. See App. at 694. Nevertheless, the court
determined that the prosecution’s reason was sincere and
therefore survived Batson scrutiny.

This finding was not clearly erroneous. To begin with, the
facts underlying the government’s concern were accurate:
leading up to the trial, Ms. Hargis indeed had lived in south
Jersey for a shorter period than any of the 12 initially
seated jurors. Moreover, it was not patently unsound or
unreasonable for the government to prefer a juror with
greater community ties and regional familiarity. 8 We
recognize that the prosecution did not strike two other
jurors with relatively transient ties to the south Jersey
community: Ms. Bond who had resided in the area for only
four years and before that had lived on the west coast and
Ms. Cain who had resided in the area for only six years. Yet
absent further evidence probative of prejudicial motive, this
minor discrepancy,9 particularly in light of the finite
_________________________________________________________________

8. We note that neither we nor the district court must endorse or reject
the logic of the government’s nonracial motive so long as it is deemed
genuine and credible. See Hernandez, 505 U.S. at 365, 111 S.Ct. at
1869 ("In the typical peremptory challenge inquiry, the decisive question
will be whether counsel’s race-neutral explanation for a peremptory
challenge should be believed.").

9. The fact remains that Ms. Hargis had the briefest recent residence of
the three. Our analysis might be different if the reverse were true. See,
e.g., Jones v. Ryan, 987 F.2d 960, 973 (3d Cir. 1993) (rejecting the
prosecutor’s proffered race-neutral explanation for striking black jurors
where the prosecutor did not apply the same rationale to white jurors in
the identical or more extreme position). It also bears mentioning that
Milan struck Ms. Bond and Ms. Cain, albeit in rounds after the
government struck Ms. Hargis.

                                13


number of peremptories available, does not undermine the
integrity of the district court’s factual finding.

Nothing else in the record, including the nature of the
crimes, the race of the defendant or any witnesses, and the
government’s strikes of Ms. Gorrell and Mr. Robinson
(unassailed on appeal), suggests that the government took
race into account in exercising its strikes. To the contrary,
though it did not exhaust its allocated peremptories, the
government did not strike three of six African-American
jurors.10 In fact, the percentage of African-Americans seated
on the jury appears to have exceeded the percentage of
African-Americans among total venirepersons. Moreover, we
find nothing suspect in the government’s use of the term
"blending," a word that, in some circumstances, conceivably
could be a cue to the presence of a sublimated
discriminatory motive.11 Ultimately, the district court found
the government’s explanation credible, and nothing before
us suggests that we should upset that finding. In short, the
district court’s factual finding regarding Ms. Hargis was not
clearly erroneous.

In his second Batson argument, Milan claims that the
district court disregarded the correct analytical framework
for judging his Batson objections by failing to scrutinize
_________________________________________________________________

10. We recognize that the fact that a prosecutor did not exhaust the
government’s peremptory challenges to exclude all black venirepersons
does not mean that the prosecutor did not exercise any peremptory
challenges in a discriminatory manner. See United States v. Clemons,
843 F.2d 741, 747 (3d Cir. 1988) ("[W]e doubt the significance of
including a single black on a panel if, at the same time, the government
used most of its peremptory challenges . . . to strike blacks with
backgrounds similar to the white jurors ultimately selected.").

11. We realize that a prosecutor might couch a preference for a more
homogeneous jury by accentuating an innocuous characteristic (e.g.,
geography, age, socio-economic status, marital status) which, in the
interest of so-called "jury blending," not coincidentally correlates to
certain demographic realities and may serve to cleave one race from
another. See, e.g., Batson, 476 U.S. at 106, 106 S.Ct. at 1728 (Marshall,
J., concurring) ("A prosecutor’s own conscious or unconscious racism
may lead him easily to the conclusion that a prospective black juror is
‘sullen,’ or ‘distant,’ a characterization that would not have come to his
mind if a white juror had acted identically.").

                                14


appropriately the race-neutral explanations the prosecution
proffered for its exercise of peremptory challenges. This
argument is distinct from his factual contention with
respect to the government’s challenge to Ms. Hargis.
Typically, we exercise plenary review of a district court’s
application of legal precepts. See Shade v. Great Lakes
Dredge & Dock Co., 154 F.3d 143, 152 (3d Cir. 1998). The
government suggests, however, that our review here is
governed by the more stringent plain error standard
because Milan failed to object to the district court’s
methodology in the district court. See Fed. R. Crim. P. 52(b)
("[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of
the court"). Milan counters with the assertion that he did
preserve the claim for appellate review by pressing his
generic discrimination argument, which presumptively put
the court on notice that a failure to apply the correct legal
standards to the facts would be objectionable.

Nevertheless, we need not determine the standard of
review definitively because even under the more expansive
de novo standard Milan’s claim is without merit. The record
explicates that the district court properly applied the three-
prong analysis that Batson and its progeny delineated. In
the first instance, Milan raised an objection when three of
the first four prospective jurors the government struck were
African-American. Then the government, before the court
determined whether the prima facie threshold had been
crossed, quickly articulated race-neutral explanations for
all three challenged venirepersons. The district court, as
required by the strictures of Batson, contemplated the
proffered explanations and the evidence before it and
concluded ultimately that the defense had not carried its
burden of showing purposeful discrimination on the part of
the government. For example, in reviewing the challenge to
Ms. Gorrell, the court, in line with Batson step three, noted
that it did not find "the exercise of that challenge to have
been racially motivated." App. at 693.

Perhaps the court could have articulated more clearly its
basis for finding that the government’s race-neutral
explanations were legitimate and "expressed in good faith."
See App. at 670. Notwithstanding, the court, specifically
                                  15


citing to and quoting Batson as well as our related case
law, United States v. Casper, 956 F.2d 416 (3d Cir. 1992),12
as the proper legal standard under which to analyze the
claim, fulfilled its required constitutional task by evaluating
the government’s reasons against the backdrop of the
record to see whether there had been purposeful
discrimination. Finding no basis to cast doubt on the
government’s race-neutral explanations, the court overruled
Milan’s objection. As no special scrutiny was required,13 the
district court did not commit a legal error.

B. Reasonable Doubt Instruction

Milan argues next that we should reverse his conviction
on all counts because the district court diluted the
constitutionally required standard of proof in its jury
instruction on reasonable doubt. As Milan did not raise this
objection at trial, we review this contention for plain error.
See United States v. Wolfe, 245 F.3d 257, 260-61 (3d Cir.
2001).

At the outset of the trial, the court gave a brief definition
of proof beyond a reasonable doubt as evidence of"such a
convincing character that a reasonable person without
hesitation would rely and act upon it in the most important
of his or her own affairs." App. at 738. The court also
explained the presumption of innocence afforded to Milan
and the burden of persuasion demanded of the government,
with the latter satisfied only on the basis of "evidence that
is produced during the course of this trial." App. at 737.

At the close of the trial, the court instructed the jury in
its final charge as follows, in relevant part:

         A reasonable doubt is a doubt which a reasonable
         person has after carefully weighing all of the evidence
_________________________________________________________________

12. See App. at 689-95.

13. Milan points to a statement in Uwaezhoke , 995 F.2d at 393, that a
trial court should exercise special scrutiny in the third Batson step when
the government’s explanation would have a disparate impact on a
particular racial group. The Uwaezhoke court, however, immediately
qualified this position, explaining that the existence of a disparate
impact does not alter the legal standard the trial judge should apply. See
id. at 393 n.4.

                                  16


         based upon reason and common sense. It is the kind
         of doubt that would make a reasonable person hesitate
         to act . . . Now, a reasonable doubt is not a possible
         doubt or a fanciful doubt. A reasonable doubt is not a
         doubt arbitrarily or capriciously asserted by a juror
         because of his or her reluctance to perform a difficult
         task. It is not a doubt arising from the natural
         sympathy which one may have for another . . . it is not
         necessary for the government to prove the guilt of the
         defendant beyond all possible doubt or to a
         mathematical certainty. If that were the rule, few
         persons would ever be convicted, however guilty they
         might be. The reason is that in this world of ours, it is
         practically impossible to be absolutely and completely
         convinced of any disputed fact which by its nature
         is not susceptible to mathematical certainty.
         Consequently, in a criminal case, it is sufficient if the
         proofs show that the defendant is guilty beyond a
         reasonable doubt, and not beyond all possible doubt.
         And I will sum up the concept for you in this way.
         Reasonable doubt may be said to exist in any case
         when, after careful and impartial consideration of the
         evidence, the jurors do not feel convinced to a moral
         certainty that a defendant is guilty. If, however, after a
         fair, impartial and careful consideration of all the
         evidence you are convinced of the guilt of the
         defendant beyond a reasonable doubt, then it is your
         duty to return a verdict of guilty with respect to that
         charge. On the other hand, after such a fair, impartial
         and careful consideration of all the evidence, if you
         have a reasonable doubt as to the defendant’s guilt,
         then it is your duty to find the defendant not guilty of
         the particular offense charged. Keep in mind that in
         every criminal case, and certainly in this one as well,
         the burden is upon the government to prove the
         defendant’s guilt beyond a reasonable doubt. The
         burden of proving their guilt beyond a reasonable
         doubt remains with the government throughout the
         case, and it never shifts to the defendant. And this
         burden of proof beyond a reasonable doubt extends
         and relates to each essential element of the crimes
         charged.

                                17


App. at 3610-12 (emphasis added).

Milan posits error in the court’s equating of proof beyond
a reasonable doubt with "moral certainty" without defining
or contextualizing the phrase. See United States v. Jacobs,
44 F.3d 1219, 1226 (3d Cir. 1995) ("moral certainty" should
not be used in charge). When viewed as a whole, 14 however,
the instructions did not create a reasonable likelihood that
the jury would have believed that it could convict Milan
based on a standard of proof lower than that required by
the Due Process Clause of the Constitution. See Victor v.
Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 1243 (1994).
Rather, we are satisfied that the court’s comprehensive
charge mitigated any taint created by its single, isolated
utterance of the phrase "moral certainty," as it clearly and
repeatedly admonished the jury to consider only the
evidence (rather than its subjective moral sensibilities) and
allocated the burden of proof squarely within the province
of the prosecution (the burden of proof "remains with the
government throughout the case" and "extends and relates
to each essential element of the crimes charged"). Moreover,
the charge explained the meaning of reasonable doubt at
great length, appropriately, and without reference to the
objectionable phrase. We see no reason to doubt that the
jury, guided by these comprehensive instructions, 15 applied
the law correctly in its deliberation.

Milan correctly notes that we expressly have discouraged
use of "moral certainty" language in a reasonable doubt
instruction. See Jacobs, 44 F.3d at 1226. However, the
mere presence of the phrase in a jury charge does not
_________________________________________________________________

14. See United States v. Thayer, 201 F.3d 214, 221 (3d Cir. 1999) (in
evaluating a challenge to jury instructions, "we consider the totality of
the instructions and not a particular sentence or paragraph in isolation")
(quoting United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995)).

15. We presume that the jury followed the district court’s instructions.
See Francis v. Franklin, 471 U.S. 307, 324 n.9, 105 S.Ct. 1965, 1976 n.9
(1985) (dubbing it a "crucial assumption" underlying our trial system
that jurors carefully follow instructions) (citation omitted). Moreover, the
record is consistent with this presumption, considering that the jury,
after eight days of deliberation, returned a mixed verdict of convictions,
acquittals, and hung counts. See United States v. Gilsenan, 949 F.2d 90,
96 (3d Cir. 1991).

                                18


render the instructions constitutionally defective. See
Victor, 511 U.S. at 16, 114 S.Ct. at 1248 (engaging in a
case-specific analysis to conclude it not reasonably likely
that a jury understood the words "moral certainty" as
"suggesting a standard of proof lower than due process
requires or as allowing conviction on factors other than the
government’s proof "); see also Johnson v. Alabama, 256
F.3d 1156, 1192 (11th Cir. 2001) ("use of the term ‘moral
certainty’ in a reasonable doubt instruction is not fatal"). As
we are satisfied that the district court’s charge adequately
ensured that the "moral certainty" terminology reasonably
would not be understood to lower the government’s burden,
Milan fails to demonstrate plain error, i.e. an unfair
prejudicial impact on the outcome of the case.16

C. Brady Claim

Milan next argues that the government’s failure to reveal
exculpatory evidence requires that we reverse his conviction
on counts 3 and 9. Our review of the denial of a motion for
new trial on the basis of a Brady argument is de novo with
respect to the district court’s conclusions of law and is
based on the "clearly erroneous" standard with respect to
its findings of fact. See United States v. Perdomo, 929 F.2d
967, 969 (3d Cir. 1991).

Counts 3 and 9 centered around Milan’s receipt of cash
and other benefits from Natale through Daidone from
March 1996 to June 1998. Natale, who signed a
cooperating plea agreement in September 1999 with respect
to two criminal informations, was a principal government
witness at Milan’s trial. Daidone, however, did not testify.
Natale, who also was slated to testify for the government in
a separate organized crime prosecution brought in the
Eastern District of Pennsylvania against Joseph Merlino,
was incarcerated pending Milan’s trial at F.C.I. Allenwood
where the Bureau of Prisons monitored and recorded a
number of his phone conversations.

The defense in the Merlino case learned of the existence
of the tapes and successfully moved for their preservation
and disclosure. R.J. Saturno, an FBI agent who worked on
_________________________________________________________________

16. See United States v. Thayer, 201 F.3d 214, 222-23 (3d Cir. 1999).

                                19


both the Milan and Merlino cases, subsequently transported
the tapes to the office of the United States Attorney in
Philadelphia.

Before jury selection began in Milan’s trial, an Assistant
United States Attorney from the District of New Jersey
learned of the tapes. Accordingly, the prosecutor contacted
the United States Attorney’s Office in Philadelphia regarding
the tapes and transcripts but was advised that that office,
on the basis of its review of them, determined that they
contained only irrelevant discussions of family matters and
the like. See App. at 3772.

On May 23, 2001, some four months after the completion
of the Milan trial, the government provided Milan’s new
attorney with copies of the tapes, as well as a written
summary of the conversations and transcripts of three
particular conversations. Milan moved for a new trial on the
basis of the tapes on June 6, 2001, but the court denied
the motion during Milan’s sentencing hearing.

On July 9, 2001, the district court issued a
memorandum opinion explaining its denial as follows.
Revising statements made during the hearing, the court
concluded that the government "could have easily reviewed
the tapes and had an obligation to do so" because the
information contained in them was "easily accessible." App.
at 4182, 4185. Nevertheless, the court ruled that Milan’s
defense was not prejudiced by his trial attorney’s inability
to use the tapes in cross-examining Natale. We agree.

Under Giglio v. United States, 405 U.S. 150, 154-55, 92
S.Ct. 763, 766 (1972), the government must disclose
materials that go to the question of guilt or innocence as
well as materials that might affect the jury’s judgment of
the credibility of a crucial prosecution witness. See also
United States v. Bagley, 473 U.S. 667, 676-77, 105 S.Ct.
3375, 3380-81 (1985). However, to warrant a reversal, the
withheld evidence must be material, that is, of sufficient
significance that its suppression deprived the defendant of
a fair trial. See United States v. Agurs, 427 U.S. 97, 108, 96
S.Ct. 2392, 2399 (1976); see also Pennsylvania v. Ritchie,
480 U.S. 39, 57, 107 S.Ct. 989, 1001 (1987) (evidence is
material only if there is a "reasonable probability that, had

                                20


the evidence been disclosed to the defense, the result of the
proceeding would have been different") (citations omitted).

Portions of the tapes reveal that Natale expected an early
release from prison as a result of his cooperation with the
government. For example, in one conversation with Daniel
D’Ambrosia, a former crime associate, Natale surmises a
likely release in approximately one to two years. See App. at
3840. In another conversation, Natale informs one of his
daughters that he expects to be home "not too far in the
future." App. at 4067. In addition, the tapes demonstrate
that Natale suggested that his involvement in the case
might bring about a lucrative book or movie deal. See App.
at 3922. Milan maintains that the tapes were relevant to
impeach Natale’s credibility by demonstrating his motive to
falsify his connection to Milan to secure a reduced sentence
or a financial windfall.

After a review of the extensive record in this case, we
conclude that the government’s failure to divulge the tapes
did not impair the integrity of the trial as a whole or put the
case in such a different light so as to undermine confidence
in the verdict. At the outset, it bears mentioning that Milan
overstates the potential benefit of the tapes to his defense
inasmuch as they included, inter alia, Natale’s inculpatory
statement that he was "buying Milan," App. at 4131, and a
statement by Natale that "I don’t have to make a story up"
because he had been "promised nothing" from the
government. App. at 4074-75. Furthermore, to the extent
that they demonstrate that Natale once anticipated
government leniency in exchange for his cooperation, the
tapes are undercut by Natale’s subsequent recognition at
his plea colloquy, some five months after the last tape was
recorded, that the district court had discretion to reject any
government U.S.S.G. S 5K1.1 motion for a reduced sentence
or grant the motion and nevertheless limit any reduction.
See id. at 775-76. Likewise, as the district court correctly
noted, the suggestion that Natale had a financial incentive
to lie and capitalize on his crimes is far-fetched considering
that there was no credible evidence of a potential book or
movie deal. In fact, Natale testified during the Merlino case
that he had inflated his prospects when speaking to his
wife and daughter in order to assuage their concerns over

                                21


mounting financial woes. See Appellee’s Supp. App. at 797-
99. Furthermore, there was an obvious non-financial
reason why Natale would tell his wife and daughter that he
expected to be home soon: to comfort them in a time when
they missed his presence in their lives.
Most importantly, the additional evidence would have
been merely cumulative. See Hollman v. Wilson , 158 F.3d
177, 182 (3d Cir. 1998); United States v. Hill , 976 F.2d 132,
136 (3d Cir. 1992). The government disclosed to Milan a
wealth of impeachment materials concerning Natale,
including his entire criminal history, transcripts of his
testimony before a United States Senate Subcommittee
investigating organized crime, a civil RICO complaint,
scores of FBI 302s, hundreds of intercepted recorded
conversations between Natale and other crime associates,
wiretap affidavits, his cooperation agreement, the two
informations to which he had pleaded guilty, the transcript
of his guilty plea hearing, and an audiotape of a parole
hearing. Amply equipped with materials evincing that
Natale cooperated with the government in return for the
possibility of a reduced sentence, Milan’s trial attorney
exploited this fact on cross-examination:

         Attorney: Now, getting back to the plea agreement.
         Your understanding is as a result of your
         cooperation, the government is prepared to
         file what is known as a substantial
         assistance motion, known as a 5K1.1,
         correct?

         Natale: Correct.

         Attorney: And that particular motion would allow
         you to escape the mandatory life [sentence]
         that you’re looking at, correct?

         Natale: True.

App. at 1512. In addition, the district court specifically
instructed the jury that in evaluating the credibility of
witnesses it could consider any plea arrangements in which
the government agreed to urge leniency at sentencing in
exchange for witness cooperation during investigation and
trial. See id. at 3607.

                                22


In that sense, this case is distinguishable from those
relied upon by Milan where the withheld evidence was
material because it deprived the defense of any reasonable
opportunity to pursue a particular avenue of impeachment.
See, e.g., Crivens v. Roth, 172 F.3d 991, 999 (7th Cir. 1999)
(new trial warranted where the state failed to turn over the
criminal history records of its witness for impeachment
purposes); United States v. Service Deli Inc. , 151 F.3d 938,
942-44 (9th Cir. 1998) (new trial required because failure to
disclose information regarding the central government
witness, which included statements attributing inconsistent
testimony to "a stroke which affected his memory,"
completely foreclosed certain impeachment strategies).

Moreover, even without access to the largely redundant
tapes, Milan’s attorney pursued a number of other means
of attacking Natale’s credibility, including highlighting a
prior criminal record that included complicity in more than
a dozen murders. Milan’s attorney also inquired into
Natale’s relationship with a previous Camden city council
president, with whom Natale had met face-to-face on
numerous occasions to bribe. This line of questioning cast
doubt on Natale’s claim that he had to pay Milan off using
Daidone as a middle man in order to avoid public attention.

In short, Milan’s attorney was not precluded from
pursuing any theory of impeachment with respect to Natale.
See United States v. Johnson, 199 F.3d 123, 128 (3d Cir.
1999) (rejecting Brady challenge where the defense
otherwise was allowed to cross-examine prosecution
witnesses on "many areas affecting credibility"). As there
was considerable other evidentiary support to sustain the
conviction on counts 3 and 9,17 Milan is not entitled to
_________________________________________________________________

17. To reiterate, count 3, a wire fraud charge, alleged that Milan carried
out a scheme to defraud the public of his honest services by accepting
a paid golf vacation to Palm Beach, Florida. The government bolstered
Natale’s testimony with travel agency business records showing that
Daidone paid for the trip in cash, testimony from investigators who
witnessed Milan and Daidone board the plane to Florida, testimony from
a hotel employee confirming their arrival, and other evidence to
demonstrate that Daidone was doing and seeking business with the City
of Camden. Count 9 charged a conspiracy to accept illegal payments

                                23


relief. See, e.g., United States v. Price, 13 F.3d 711, 722 (3d
Cir. 1994).18

D. Improper Vouching

Milan challenges his conviction on counts 3, 9, 15, 16,
and 17 on the ground that the government vouched for the
integrity and strength of its case on these counts. 19
Specifically, Milan complains that there was improper
vouching when the prosecutor introduced testimony about
the district court’s role in approving wiretaps, elicited
testimony about the truthfulness of cooperating witnesses,
and introduced testimony concerning the prosecution of
government witnesses Jose Rivera and Saul Febo before
they decided to cooperate. Because, as he acknowledges,
Milan raised no objection at trial to the alleged vouching,
we review the contention only for plain error. See United
States v. Saada, 212 F.3d 210, 224 (3d Cir. 2000).

Vouching constitutes an "assurance by the prosecuting
attorney of the credibility of a Government witness through
personal knowledge or by other information outside of the
testimony before the jury." United States v. Walker, 155
F.3d 180, 184 (3d Cir. 1998). Vouching runs the danger of
influencing the jury to disregard its fact-finding mandate in
favor of privileging and perhaps deferring to the view of the
evidence as endorsed by a sovereign representative. See
_________________________________________________________________
from Natale in violation of the Travel Act. To demonstrate that Daidone
functioned as an intermediary between Natale and Milan, the
government introduced a tape recording of a March 1996 conversation
between Daidone and Natale discussing Daidone’s first meeting with
Milan, as well as testimony from government agents who witnessed
Daidone exiting Natale’s apartment to meet with Milan, parked nearby.
There was also testimony from the owner of an Italian restaurant to the
effect that Natale paid him approximately $1,000 to cover the cost of a
dinner at the restaurant the previous evening celebrating Milan’s election
as mayor.

18. We do not reach the issue of whether the prosecution had actual or
constructive knowledge of the tapes and transcripts as their suppression
did not materially impair the fairness of the trial.

19. These counts involved testimony of witnesses on whose behalf the
government allegedly vouched.

                                24


United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038,
1048 (1985) (vouching for witnesses or expressing personal
opinions concerning guilt of the accused carries"the
imprimatur of the Government and may induce the jury to
trust the Government’s judgment rather than its own view
of the evidence"). Vouching also runs the risk of
engendering a jury belief in the existence of outside
information tending to support the position of the
government. See United States v. Toner, 173 F.2d 140, 142
(3d Cir. 1949) (acknowledging a defendant’s "right to have
his guilt or innocence determined by the evidence presented
against him").

For example, in United States v. Dispoz-O-Plastics, Inc.,
172 F.3d 275, 284 (3d Cir. 1999), we found a prosecutor’s
remark about a policy of the Department of Justice not to
give "two-for-one deals" improper because it was meant to
convince the jury that the prosecutor somehow knew that
the witnesses were telling the truth, i.e., that the
department would not give a deal in return for the two
guilty pleas unless it was convinced that there were two
separate offenses. See also United States v. DiLoreto, 888
F.2d 996, 998 (3d Cir. 1989) (reversing convictions where
the prosecutor attempted to bolster the credibility of its
cooperating witnesses by stating during closing rebuttal:
"We don’t take liars. We don’t put liars on the stand. We
don’t do that").20

While Milan attacks specific and isolated strategic
choices the prosecution pursued at trial, he fails to
demonstrate that a representative of the government gave
inappropriate personal assurances concerning the reliability
of a witness based on facts not before the jury. For
instance, Milan suggests that the prosecutor’s pursuit of
testimony concerning judicial approval for wiretaps 21
_________________________________________________________________

20. United States v. Zehrbach, 47 F.3d 1252, 1267 (3d Cir. 1995) (en
banc), overruled DiLoreto because DiLoreto applied a per se rule in its
analysis. However, Zehrbach did not overrule the result reached in
DiLoreto. See id. at 1255 n.1.

21. The government asked Agent Saturno whether"the wiretaps on
Natale’s residential telephone [were] authorized by a District Court Judge
right here in Camden," to which he replied, "yes." App. at 1163. While we

                                25


created the "appearance that the very court where the trial
was heard had participated in and approved the
government investigation." Br. at 90. But this evidence,
though of tangential relevance considering that Milan’s
attorney never sought to challenge the government’s use of
wiretap techniques, was nevertheless admissible 22 and,
more significantly, did not involve superfluous, personal
opinions of the prosecutor vouching for a witness. See
Saada, 212 F.3d at 225 (two criteria required to find
vouching are: (1) the prosecutor must assure the jury that
the testimony of a government witness is credible, and (2)
this assurance must be based on either the prosecutor’s
personal knowledge or other information not contained in
the record).

Likewise, with respect to the cooperating witnesses
Natale, Rivera, and Febo, the prosecutor inquired into their
previous convictions and their cooperation agreements,
specifically those aspects requiring truthfulness in
exchange for a leniency recommendation, but never made
any statement that invited a plausible jury inference of
extra-record proof of reliability in the government’s
exclusive possession. See United States v. Ramos , 27 F.3d
65, 67 n.4 (3d Cir. 1994) (no improper vouching where
government merely made reference to the "truthfulness
provision" of a plea agreement). As Milan fails to show that
the prosecutors referred to facts not adduced at trial or
offered personal opinions to bolster the integrity and
believability of their witnesses, he does not carry his
burden of showing prejudice. See United States v. Turcks,
41 F.3d 893, 897 (3d Cir. 1994) (an error is "plain" if it
"seriously affect[s] the fairness, integrity or public
reputation of the judicial proceedings") (citations omitted).
_________________________________________________________________

see no basis to find that there was vouching by reason of this question,
particularly in the absence of an objection at trial, we must say that we
can see no legitimate reason for the reference to"right here in Camden."
We also point out that if the prosecution stated to the jury that the judge
thought that the defendant was guilty the comment might be so
prejudicial as to require a new trial.

22. The defense opened the door by intimating during opening
statements that the government was willing to engage in improprieties --
had made "a pact with devils," App. at 823, in order to convict Milan.

                                26
E. 3-Level Upward Departure

Lastly, Milan contends that the district court erred when
it applied a 3-level upward departure to his combined
offense level rather than to the public corruption counts
only, which had the effect of increasing his sentence by 16
months.23 On this point, a majority of the panel affirms the
district court; however, Judge Greenberg, the author of the
rest of this opinion, would reverse. The following portion of
this opinion, therefore, represents the views of Chief Judge
Becker as joined in by Judge Barzilay, with Judge
Greenberg offering the reasons for his disagreement in a
separate dissenting opinion, infra.

At sentencing, the court adopted, without objection, the
grouping calculations of the Presentence Investigation
Report (PSR) which, applying the methodology set forth in
U.S.S.G. S 3D1.2,24 trisected Milan’s convictions into
distinct groups according to the nature of the offenses:
Group One, involving Milan’s unlawful financial
transactions concerning the loan from Rivera (counts 15,
16, and 17); Group Two, involving Milan’s crimes as a
public official (counts 1, 3, 4, 7, 8, 9, 12, 13, and 14); and
Group Three, involving the staged burglary of Atlas
Contracting Company and subsequent insurance fraud
(counts 18 and 19).

The government moved for an upward departure on the
grounds that Milan was involved in systematic or pervasive
corruption of a public office which caused a loss of
_________________________________________________________________

23. Our review of the district court’s construction of the Sentencing
Guidelines is plenary. See United States v. Swan , 275 F.3d 272, 275 (3d
Cir. 2002).

24. Section 3D1.1(a) of the guidelines establishes a three-step procedure
for determining the proper offense level in a case that involves multiple
counts of conviction. First, counts that are "closely related" must be
grouped in accordance with the provisions of section 3D1.2. Each group
then is assigned an offense level based on the count with the highest
offense level within that group. See U.S.S.G. S 3D1.3. Finally, if there is
more than one group, section 3D1.4 provides that the combined offense
level is derived by determining "units" for each group and adding offense
level increases for each group to the offense level for the group with the
highest specified offense level.

                                27


confidence in government. Specifically, U.S.S.G.S 2C1.7,
the guideline used to calculate the adjusted offense level for
the Group Two crimes, which is entitled "Fraud Involving
Deprivation of the Intangible Right to the Honest Services of
Public Officials; Conspiracy to Defraud by Interference with
Governmental Functions," contains within its commentary
Application Note 5, which states:

         Where the court finds that the defendant’s conduct was
         part of a systematic or pervasive corruption of a
         governmental function, process, or office that may
         cause loss of public confidence in government, an
         upward departure may be warranted. See Chapter Five,
         Part K (Departures).

The court granted the government’s motion, adding a 3-
level upward departure to Milan’s combined offense level for
a total base of 27 as follows:

                                                 Section 3D1.4
                                                 Units
         Adjusted Offense Level for Group One:   23
         Adjusted Offense Level for Group Two:   18
         Adjusted Offense Level for Group
         Three:                                  11
         Total Units                             1-1/2
         Greater Adjusted Offense Level          23
         Increase in Offense Level               1
         Section 2C1.7 Departure Increase        3
         Total Offense Level                     27

See PSR at 21-27. With criminal history category I, the
sentencing range was 70 to 87 months, and the court
imposed the maximum term available within the range.

Milan maintains that the district court should have
applied the departure only to the Group Two adjusted
offense level, the group encompassing Milan’s acts of public
corruption to which the departure was applicable, before
applying the multiple-grouping adjustments found in
U.S.S.G. S 3D1.4. Applying the 3-level public corruption
departure only to calculate the adjusted offense level of the
public corruption charges would have yielded the following
results:

                                28


                                                 Section 3D1.4
                                                 Units
         Adjusted Offense Level for Group One:   23
         Adjusted Offense Level for Group Two
         (with three-level section 2C1.7
         departure applied):                     21
         Adjusted Offense Level for Group
         Three:                                  11
         Total Units                             2
         Greater Adjusted Offense Level          23
         Increase in Offense Level               2
         Total Offense Level                     25

With a criminal history category I, the sentencing range
under Milan’s proposed methodology would have been 57 to
71 months.

Under U.S.S.G. S 1B1.1 the steps for calculating a
sentence are as follows: (a) determine the applicable
guideline section for each offense from Chapter Two; (b)
determine the base offense level and apply any appropriate
"specific offense characteristics, cross references, and
special instructions" contained in the particular guideline
in Chapter Two; (c) apply the adjustments as appropriate
related to victim, role, and obstruction of justice from Parts
A, B, and C of Chapter Three; (d) repeat steps (a) through
(c) for each count and adjust the offense level accordingly
if there are multiple counts of conviction; (e) apply the
adjustment as appropriate for the defendant’s acceptance of
responsibility from Part E of Chapter Three; (f) determine
the defendant’s criminal history category as specified in
Part A of Chapter Four; (g) determine the guideline range in
Part A of Chapter Five that corresponds to the offense level
and criminal history category previously determined; (h)
determine from Parts B through G of Chapter Five the
sentencing requirements and options related to probation,
imprisonment, supervision conditions, fines, and
restitution; and, (i) "[r]efer to Parts H and K of Chapter Five,
Specific Offender Characteristics and Departures, and to
any other policy statements or commentary in the
guidelines that might warrant consideration in imposing
sentence." U.S.S.G. S 1B1.1(a)-(i). We have held that these
steps are to be applied sequentially by the sentencing

                                29


court. See United States v. Johnson, 155 F.3d 682, 684 (3d
Cir. 1998) ("The court reads these instructions as providing
a sequence of steps for the court to follow in the order in
which they appear."); United States v. McDowell, 888 F.2d
285, 293 (3d Cir. 1989) (construing S1B1.1 as reflecting
"[t]he intent of the Sentencing Commission . . . that the
Guidelines be applied like a formula; a court . . . should go
down each guideline in order, making the necessary
calculations"). As we will explain infra, we think that
structure applicable here.

Milan contends that the district court erred in applying
the S 2C1.7 Application Note 5 upward departure at step (i)
(after the step (d) grouping) rather than at step (b) (before
grouping). Milan asserts that Note 5 is a departure specific
to S 2C1.7 and not the type of more general,"unguided"
Chapter 5 departure to which step (i) refers. This
conclusion is supported, according to Milan, by the
language of Note 5, which is narrowly written and directed
toward the offense level determination for a S 2C1.7 offense.
For the same reason, Milan submits that applying the Note
5 departure to the adjusted base offense level before
grouping is more consistent with the "punishment fits the
crime" logic of the Guidelines in that the upward departure
for governmental corruption ought to be specifically tied to
that portion of his sentence that relates to his crimes as a
public official.

The government counters by arguing that Milan’s
proposed methodology is inconsistent with the Guidelines’
text. Specifically, the government contends that the Note 5
departure is neither a "specific offense characteristic," a
"cross reference," nor a "special instruction," and therefore
does not fall within the ambit of S 1B1.1 step (b). Rather,
the government contends, Note 5 is simply a reference to
the type of Chapter 5 departure that the sentencing court
may properly consider at step (i), only after the multiple-
groups adjustments have been performed. Furthermore, the
government argues that the district court’s methodology is
more consistent with general Guidelines principles in that
it allows the judge to assess the factors listed in Note 5 only
after the judge has considered all of the information
relevant to determining whether a departure is appropriate,

                                30


such as the defendant’s criminal history and whether the
defendant has accepted responsibility for his acts.

We hold that the government’s position is correct, and
that the district court did not err in applying Note 5 to
Milan’s sentence after grouping. We reach this conclusion
primarily because we find the text of the Sentencing
Guidelines clear on this point. In particular, we think it
plain that the departure warranted by Application Note 5
does not amount to a "specific offense characteristic,"
"cross reference," or "special instruction," the only three
types of sentencing adjustments to which step (b) explicitly
refers.

Milan has conceded that Note 5 is not a "specific offense
characteristic," see Milan’s Reply Br. at 18, and he has not
raised any argument that Note 5 is a "cross reference," nor
could he reasonably do so in light of the fact thatS 2C1.7
does not include Note 5 within its four provisions--
U.S.S.G. S 2C1.7(c)(1)-(4) -- expressly designated as "cross
references," see United States v. Gay, 240 F.3d 1222, 1232
(10th Cir. 2001) (concluding that the Guidelines’ career
offender provision, U.S.S.G. S 4B1.1, is not a"cross
reference" in part because it is not labeled as such), nor
does Note 5 instruct the sentencing court to apply any
other guideline, which is a requirement under the
Guidelines’ definition of a "cross reference." See U.S.S.G.
S 1B1.5 (defining a "cross reference" as"an instruction to
apply another offense guideline").

We also think it clear that Note 5 does not qualify, as
Milan argues, as a "special instruction," a phrase which is
used as a term of art in the Guidelines. The Guidelines take
care to label "special instructions" expressly as such in
many subsections of Chapter Two. See, e.g., U.S.S.G.
SS 2A3.1(d), 2B1.1(d), 2B4.1(c). Note 5, however, is not
expressly labeled a "special instruction." We apply the rules
of statutory construction when interpreting the Guidelines,
see United States v. Robinson, 94 F.3d 1325, 1328 (9th Cir.
1996), and under the well-established canon of statutory
construction of expressio unius est exclusio alterius, the
Guidelines’ failure to expressly designate Note 5 as a
"special instruction" when this label is conspicuously
affixed to many other provisions within the same chapter is

                                31
a clear sign that the authors of the Guidelines did not
intend for Note 5 to operate as a "special instruction."
Indeed, all of the provisions prominently labeled as"special
instructions" appear within the text of each Guideline,
unlike Note 5, which appears within the commentary to
S 2C1.7. Even if Milan is correct that it is more "intuitive"
to apply the Note 5 departure, which is for systematic or
pervasive governmental corruption causing loss of public
confidence in government, only to Milan’s offenses that
relate to his crimes as a public official, where the text of the
Guidelines appears clear, as it does here, whatever
"intuition" we may have must yield to the language of the
Guidelines.

Milan argues that even if Note 5 is not expressly
designated as a "special instruction," it is the functional
equivalent thereof, and therefore ought to be treated as
such for the purposes of step (b) of S 1B1.1. We disagree. As
mentioned above, the text of S 1B1.1(b) refers only to
"specific offense characteristics, cross references, and
special instructions," and does not include any sort of
"catch-all" provision for subsections or commentary that,
while different in form, are similar in function to these
three very specifically defined Guideline terms. In contrast,
subsection (i) of S 1B1.1, which is the step at which the
district court applied Note 5, does contain a "catch-all"
provision that refers to "any other policy statements or
commentary in the guidelines that might warrant
consideration in imposing sentence." Moreover, Milan’s
contention that Note 5 is the functional equivalent of a
"special instruction" is simply a restatement of his claim
that Note 5 ought to be applied at step (b) rather than at
step (i); in other words, Note 5 is only a functional
equivalent of a "special instruction" if Milan is correct that
Note 5 should be applied before the grouping adjustment.
For the reasons stated above, we reject this assertion on
the basis of the Guidelines’ clear text.25
_________________________________________________________________

25. As support for his position, Milan cites to United States v. Nguyen,
255 F.3d 1335 (11th Cir. 2001), in which the United States Court of
Appeals for the Eleventh Circuit was called upon to determine when the
sentencing court ought to have applied Application Note 1 of the

                                32


Moreover, applying the Note 5 departure after grouping is
logical. Sentencing within the range prescribed by the
_________________________________________________________________

commentary to U.S.S.G. S 2A1.1, which provides that a departure may
be warranted in a murder conviction where the defendant did not
intentionally or knowingly cause death (such as in the case of so-called
"felony-murder"): during step (b) of the S 1B1.1 sequence, or after the
determination of the combined offense level, at step (i). Interestingly,
because the departure at issue in Nguyen was a downward rather than
an upward departure, the roles of the parties in Nguyen were reversed:
the government argued for applying the departure only to the particular
offense, and the defendant argued for applying the departure to the
combined offense level. The Eleventh Circuit agreed with the government
and concluded that it was proper for the sentencing court to apply the
departure only to the murder offense at step (b) before determining the
combined offense level.

Nguyen does not dissuade us from concluding that Milan’s argument
is incorrect. As the dissent points out, the court in Nguyen "implicitly"
concluded that the S 2A1.1 Note 1 departure is comparable to "specific
offense characteristics, cross references, and special instructions" for
purposes of S 1B1.1(b). Dis. Op. at 45. The reasoning of the Nguyen
court, however, was only implicit and never explicit, as the court made
no effort to reconcile its conclusion with the plain language of step (b).
Indeed, the Nguyen court addressed this issue in only one paragraph,
see 255 F.3d at 1344-45, and offered only the summary conclusion that
the sentencing court "did not err in first departing downward from the
base offense level for murder and then applying the grouping rules . . . ."
Id. at 1345. Furthermore, Nguyen is arguably distinguishable because it
addressed an application note from an entirely different guideline section
than that presented here. Although the application note considered in
Nguyen, S 2A1.1 Application Note 1, is similar to the application note at
issue here in that it is not expressly labeled as a"special instruction," it
is different in that it makes no explicit citation to "Chapter Five, Section
K (Departures)," as does S 2C1.7 Application Note 5. It may well be,
therefore, that a better argument can be made thatS 2A1.1 Application
Note 1 is a functional equivalent of a "special instruction" than can be
put forth on behalf of S 2C1.7 Application Note 5.

Nguyen illustrates how our holding today may not always be to the
government’s advantage. Rather, as counsel for the government
conceded at oral argument, in cases in which it is a downward departure
rather than an upward departure that is at issue, it would be to the
government’s advantage to have the departure deducted from the
sentence before grouping rather than afterwards. See Trans. of Oral

                                33


Guidelines is supposed to be the norm, and departures the
exception, see U.S.S.G., Chapter One, Part A, Intro.
Comment 4(b) (departures permitted only when the
sentencing court finds "an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately
taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence
different from that described" (quoting 18 U.S.C.S 3553(b)).
Therefore it is sensible to first calculate the correct
Guidelines sentencing range before the court determines
whether a sentence within that range provides an
appropriate punishment for the defendant or whether a
departure is necessary. In this sense, Note 5 simply serves
to "flag" for the sentencing judge an aggravating
circumstance likely to occur in a S 2C1.7 offense for later
consideration at the more discretionary departure stage.26
_________________________________________________________________

Argument at 44-45 ("This isn’t always going to hurt the defendant, it
may be that if you get in a situation where there’s going to be a
downward departure, the defendant is better off having the departure
applied after the grouping . . . . [S]o, this isn’t a procedure that always
helps the government . . . ."). The United States Attorney’s Office for the
District of New Jersey, therefore, has apparently made the tactical
decision that it would prefer that these departures be applied after
grouping, a decision which appears to be in conflict with the strategy of
its sister office, the United States Attorney’s Office for the Northern
District of Georgia, in Nguyen.

26. The dissent observes that the Note 5 departure for systematic or
pervasive corruption of government that may cause loss of public
confidence in government is distinct from the S 5K2.7 departure for
"disruption of governmental function." See Dis. Op. at 43 n.7. We agree.
However, we fail to see how this distinction sheds any light on the
question of when in the U.S.S.G. S 1B1.1 sequence to apply the Note 5
departure. The dissent’s reasoning seems to be that since we know that
S 5K2.7 is a departure to be applied at step (i), the fact that Note 5 is
different from S 5K2.7 in terms of the conduct to which it applies
indicates that Note 5 does not apply at step (i). In our opinion, however,
the dissent has taken one distinction between the two provisions -- the
types of conduct to which they apply -- and erroneously inferred from
this distinction another, unrelated distinction-- the point at which to
apply each departure. We see no justification for this inference; the mere
fact that Note 5 and S 5K2.7 apply to different types of conduct does not
indicate to us that they should also apply at different stages of the
S 1B1.1 sequence.

                                34


Then, when the sentencing court considers Note 5 at step
(i), it may determine the propriety of a departure in light of
full information regarding other factors relevant to the
defendant’s sentence, such as the defendant’s background,
conduct, and character. See U.S.S.G. S 1B1.1(c)-(h).27 In
contrast, under Milan’s scenario, the sentencing court
would be forced to make a departure decision before it had
made any of these findings, which would have the effect of
placing, as the government colorfully observes,"the
departure cart before the Guidelines Range horse."

The dissent believes that even if we are correct that a
Note 5 departure must be applied only during step (i), "it
does not follow logically that the court may apply the
departure only to the final offense level." Dis. Op. at 41.
Rather, the dissent submits, because step (i) directs a
sentencing court only to "refer to," rather than "apply" the
Chapter Five departures, the sentencing court is free to
" ‘refer’ to a provision of the guidelines at step (i) but
nevertheless then ‘apply’ the departure at an earlier step of
its calculations." Id. We find the dissent’s reading of a
supposed distinction between "refer" and "apply" to be
inconsistent with our case law interpreting S 1B1.1 as
imposing a sequential order for the application of steps (a)
through (i). See United States v. Johnson, 155 F.3d 682,
684 (3d Cir. 1998) ("The court reads these instructions as
providing a sequence of steps for the court to follow in the
_________________________________________________________________

27. The language of U.S.S.G. S 5K2.0, entitled "Grounds for Departure
(Policy Statement)," seems to contemplate a phenomenon akin to what
has presented itself here. It notes:
         [A] factor may be listed as a specific offense characteristic under one
         guideline but not under all guidelines. Simply because it was not
         listed does not mean that there may not be circumstances when
         that factor would be relevant to sentencing. For example, the use of
         a weapon has been listed as a specific offense characteristic under
         many guidelines, but not under other guidelines. Therefore, if a
         weapon is a relevant factor to sentencing under one of these other
         guidelines, the court may depart for this reason.

(Emphasis added.) This excerpt only confirms our conclusion that when
a factor resembles a "special instruction," but is not specifically labeled
as such, the Guidelines intend for it to be considered by the sentencing
court at the departure stage, which is step (i) of the S 1B1.1 sequence.

                                35


order in which they appear.") (second emphasis added);
United States v. McDowell, 888 F.2d 285, 293 (3d Cir. 1989)
(construing S1B1.1 as reflecting "[t]he intent of the
Sentencing Commission . . . that the Guidelines be applied
like a formula; a court should go down each guideline in
order, making the necessary calculations") (emphasis
added). Under the dissent’s proposed reading, step (i)
departures could be applied retroactively at step (b),
thereby creating an end-around to our requirement that the
steps of S 1B1.1 be applied in strict sequential order. While
we recognize that, as the dissent correctly observes, neither
Johnson nor McDowell considered whether all of the steps
of S 1B1.1 ought to be applied in sequential order, we see
no logical reason why the rule endorsed in each decision
should not extent to subsection (i).

Moreover, we think that the dissent is incorrect in its
view as to why the authors of the Guidelines use the term
"refer to," rather than "apply," in step (i). The departures
referenced in step (i) are discretionary in nature. See United
States v. Kikumura, 918 F.2d 1084, 1110 (3d Cir. 1990)
(noting that district courts have a "substantial amount of
discretion" in deciding whether to depart). It is for this
reason (and, as far as we can discern, this reason alone)
that the Guidelines instruct the district court merely to
"refer to" the departure provisions. "Refer" is defined by
Webster’s as "to direct attention," Webster’s Third New Int’l
Dict. 1907 (Phillip B. Gove ed., 1966), and this is precisely
what step (i) intends to do -- direct the attention of the
sentencing judge to the appropriate factors to be considered
in deciding whether to depart. "Refer to," therefore, is a
more appropriate term for the inherently discretionary
exercise of departing than "apply," which is defined by
Webster’s as "to put into effect," id. at 105, and connotes a
rote, mechanical, non-discretionary execution of duties. We
believe that it is for this reason, and not for the reasons
offered by the dissent, that step (i) uses "refer to" instead of
"apply."

For the foregoing reasons, we hold that the district court
was correct to apply the Note 5 departure at step (i), after

                                36
the grouping of the counts, and we will therefore affirm the
sentence.28

         III. CONCLUSION

         In accordance with our reasoning set forth above, we will
affirm the judgment of conviction and sentence entered
June 15, 2001.
_________________________________________________________________

28. Finally, we note that, as our dissenting colleague Judge Greenberg
pointed out during a colloquy with government counsel at oral argument,
had the sentencing court applied the Note 5 departure at step (b) rather
than step (i), the court still could have arrived at the same final sentence
had it been willing to depart seven, rather than three, levels for Milan’s
pervasive or systematic corruption. The following represents the
hypothetical calculation:

         Section 3D1.4 Units

         Adjusted Offense Level for Group One:                 23
         Adjusted Offense Level for Group Two
         (with seven-level section 2C1.7 departure applied):   25
         Adjusted Offense Level for Group Three:               11
         Total Units                                           27
         Greater Adjusted Offense Level                        25
         Increase in Offense Level                             2
         Total Offense Level                                   27

The practical import of our holding, therefore, may be limited in that
it is possible for the sentencing court to reach the same final sentence
under either Milan’s or the government’s proposed methodologies.
However, there is, without doubt, importance in our deciding by which
route it is that the district court arrives at its final sentence. As defense
counsel explained at oral argument, while it would have been possible
for the sentencing court to impose the same sentence under Milan’s
method, in doing so the court would have had to"justify" the propriety
of upwardly departing seven levels rather than merely three, which may
have been difficult for the sentencing court to do. See Trans. of Oral
Argument at 61-62. Moreover, as we explained above, by departing at
step (i) rather than at step (b), the sentencing court has the benefit of
having already considered all of the other factors listed in subsections (c)
through (h) that are relevant to the defendant’s sentence.

                                37


GREENBERG, Circuit Judge, dissenting:

The majority rejects Milan’s argument that the district
court erred when it applied a 3-level upward departure to
his combined offense level rather than to the public
corruption counts only. I, however, dissent on this point.

As the majority indicates, at sentencing the court
trisected Milan’s convictions into distinct groups: Group
One, involving Milan’s unlawful financial transactions
concerning the loan from Rivera (counts 15, 16, and 17);
Group Two, involving Milan’s crimes as a public official
(counts 1, 3, 4, 7, 8, 9, 12, 13, and 14); and Group Three,
involving the staged burglary of Atlas Contracting Company
and subsequent insurance fraud (counts 18 and 19).

The government moved for an upward departure on the
grounds that Milan was involved in a systematic or
pervasive corruption of a public office which caused a loss
of confidence in government on the basis of Application
Note 5 of the commentary to U.S.S.G. S 2C1.7, 1 the
guideline used to calculate the adjusted offense level for the
Group Two crimes, which states:

         Where the court finds that the defendant’s conduct was
         part of a systematic or pervasive corruption of a
         governmental function, process, or office that may
         cause a loss of public confidence in government, an
         upward departure may be warranted. See Chapter Five,
         Part K (Departures).

(emphasis in original). The court granted the motion,
adding a 3-level upward departure to Milan’s combined
offense level for a total base of 27 as follows:

                                                 Section 3D1.4
                                                 Units
         Adjusted Offense Level for Group One:   23
         Adjusted Offense Level for Group Two:   18
         Adjusted Offense Level for Group
         Three:                                  11
         Total Units                             1-1/2
_________________________________________________________________

1. Entitled "Fraud Involving Deprivation of the Intangible Right to the
Honest Services of Public Officials; Conspiracy to Defraud by Interference
with Governmental Functions."

                                38


         Greater Adjusted Offense Level          23
         Increase in Offense Level               1
         Section 2C1.7 Departure Increase        3
         Total Offense Level                     27

See PSR at 21-27. The total offense level when combined
with a criminal history category I, yielded a sentencing
range of 70 to 87 months. The court then imposed an 87-
month sentence.

As the majority indicates, Milan maintains that the
district court should have applied the departure only to the
Group Two adjusted offense level, the group encompassing
Milan’s acts of public corruption to which the departure
was applicable, before applying the multiple-grouping
adjustments found in U.S.S.G. S 3D1.4. Applying the 3-level
public corruption departure only to calculate the adjusted
offense level of the public corruption charges would have
yielded the following results:
                                                 Section 3D1.4
                                                 Units
         Adjusted Offense Level for Group One:   23
         Adjusted Offense Level for Group Two
         (with three-level section 2C1.7
         departure applied):                     21
         Adjusted Offense Level for Group
         Three:                                  11
         Total Units                             2
         Greater Adjusted Offense Level          23
         Increase in Offense Level               2
         Total Offense Level                     25

The total offense level of 25 combined with a criminal
history category I would have yielded a sentencing range of
57 to 71 months.

I believe that Milan’s approach is correct and thus I
dissent on this point. As the majority sets forth, under
U.S.S.G. S 1B1.1, the sequence for calculating a sentence is
as follows: (a) determine the applicable guideline section for
each offense from Chapter Two; (b) determine the base
offense level and apply any appropriate "specific offense
characteristics, cross references, and special instructions"
contained in the particular guideline in Chapter Two; (c)

                                39


apply the adjustments as appropriate related to victim, role,
and obstruction of justice from Parts A, B, and C of
Chapter Three; (d) repeat steps (a) through (c) for each
count and adjust the offense level accordingly if there are
multiple counts of conviction; (e) apply the adjustment as
appropriate for the defendant’s acceptance of responsibility
from Part E of Chapter Three; (f) determine the defendant’s
criminal history category as specified in Part A of Chapter
Four; (g) determine the guideline range in Part A of Chapter
Five that corresponds to the offense level and criminal
history category previously determined; (h) determine from
Parts B through G of Chapter Five the sentencing
requirements and options related to probation,
imprisonment, supervision conditions, fines, and
restitution; and, (i) "[r]efer to Parts H and K of Chapter Five,
Specific Offender Characteristics and Departures, and to
any other policy statements or commentary in the
guidelines that might warrant consideration in imposing
sentence." U.S.S.G. S 1B1.1(a)-(i).

The government interprets section 1B1 as requiring a
district court to apply any departures that do not qualify
explicitly as "specific offense characteristics, cross
references, and special instructions" (which are considered
during step (b) in calculating the offense level) during the
last step in the process and thus only after grouping and
only to the combined, total offense level. Thus, goes the
argument, inasmuch as the section 2C1.7, Application Note
5 departure for systematic or pervasive corruption is part of
the "commentary in the guidelines" but not a"specific
offense characteristic," "cross reference," or "special
instruction," the court may apply it only after completing
the grouping calculations during step (i) listed above. The
majority accepts the government’s approach.

I believe, however, that the government’s position is off
the mark. To begin with, the text of the guidelines is more
ambiguous than the government posits. Accepting arguendo
the government’s initial premise that a section 2C1.7,
Application Note 5 departure must be applied like a
Chapter 5, Part K departure only during step (i) because it
does not appear under any of the section 2C1.7 headings of
"specific offense characteristic," "cross reference," or

                                40


"special instruction,"2 it does not follow logically that the
court may apply the departure only to the final offense
level. U.S.S.G. S 1B1.1(i) directs a court simply to "refer"3 to
the Chapter 5, Part K departures and any other policy
statements or guideline commentaries before settling on a
final sentence. However, the guidelines do not dictate
rigidly how or at what point in the process the departure is
to be applied. In marked contrast, the section 1B1.1
Application Instructions very clearly instruct a court to
"[a]pply" any victim, role, and obstruction of justice
adjustments during step (c) after calculating the base
offense level4 and to "[a]pply" any acceptance of
responsibility adjustment during step (e) after applying the
grouping rules to determine the total offense level. 5 See
United States v. McDowell, 888 F.2d 285, 293 (3rd Cir.
1989) ("With respect to the adjustment for acceptance of
responsibility, the Guidelines specify that this adjustment
should be made only after the counts are combined.")
(emphasis added). Plainly the court can "refer" to a
provision of the guidelines at step (i) but nevertheless then
"apply" the departure at an earlier step of its calculations.6
_________________________________________________________________

2. The government also emphasizes the fact that Application Note 5
expressly references "Chapter Five, Part K (Departures)." But, this could
mean one of two things: either that an Application Note 5 departure is
a type of Chapter 5, Part K departure or that it is analogous to one for
purposes of the general policy considerations applicable to all
departures. See United States v. Reyes, 239 F.3d 722, 746 (5th Cir.
2001); see also The Bluebook: A Uniform System of Citation (Columbia
Law Review Ass’n et al. eds., 17th ed., The Harvard Law Review Ass’n
2000) at 22-23 (the signal "see" demonstrates that the cited authority
"clearly supports the proposition," drawing an"inferential step between
the authority cited and the proposition it supports." However, "see" does
not reflect that "the proposition is . . . directly stated by the cited
authority" rather than merely following from it).

3. Emphasis added.

4. U.S.S.G. S 1B1.1(c) (emphasis added).

5. U.S.S.G. S 1B1.1(e) (emphasis added).

6. To the extent that I accept for purposes of argument that a sentencing
court must consider a section 2C1.7, Application Note 5 departure
during step (i), I am consistent with our precedents holding that steps (a)
through (i) are applied in a strict sequential order. See, e.g., United

                                41


Furthermore, though it does not appear under the
heading "specific offense characteristic,""cross reference,"
or "special instruction," a departure for systematic or
pervasive corruption of a government function is identified
within the public corruption guideline itself, section 2C1.7,
not within Chapter 5, Part K. Listed as an "Application
Note" in the commentary, it expresses the position of the
Sentencing Commission that a court, in aggravating
circumstances such as those present here, may consider
adjusting the sanctions (i.e. increasing the offense level)
specifically for corruption-related offense conduct that falls
within the scope of Section 2C. That is to say, the
placement of the public corruption departure within the
_________________________________________________________________

States v. Johnson, 155 F.3d 682, 684 (3d Cir. 1998); McDowell, 888 F.2d
at 292-93. Thus, the court makes the necessary calculations under each
step in order (choosing the guideline, determining the base offense level,
applying adjustments, etc.) until arriving at the final step, step (i). At this
point, the court considers (i.e. "refer[s] to") the Specific Offender
Characteristics and Departures of Chapter Five as well as any other
policy statements or commentary in the guidelines before imposing
sentence. Once the court makes that consultation, it literally fulfills step
(i) in keeping with our sequential-order rule as well as fundamental
canons of statutory interpretation. See, e.g., United States v. Wong, 3
F.3d 667, 670 (3d Cir. 1993) ("As with statutory language, the plain and
unambiguous language of the Sentencing Guidelines affords the best
recourse for their proper interpretation."). Under this approach, any
course of action taken by the court after that consultation is not cabined
by the sequential methodology of section 1B1.1. Certainly there can be
no doubt that in concluding infra that a section 2C1.7, Application Note
5 departure is to be applied during step (b) as the functional equivalent
of a "specific offense characteristic," "cross reference," and "special
instruction," I am not in conflict with our precedents. Moreover, one
plausibly can argue that our precedents do not stand for the proposition
that the entirety of the Sentencing Guideline Application Instructions are
to be applied in the order in which they appear. Johnson actually stated
only that subsections (a)-(g) provide a rigid sequence of steps. See 155
F.3d at 683-84. Likewise, McDowell held only that an adjustment for
acceptance of responsibility under step (e) must be applied after the
combined offense level has been calculated in order pursuant to steps
(a)-(d). See 888 F.2d at 292-93. The cases simply do not address the
question of whether the serial method of applying section 1B1.1 extends
to step (i).

                                42


Chapter 2 public corruption guideline itself rather than
within the generic rubric of Chapter 5 strongly suggests
that the Commission intended for the departure to be
considered at the moment the court consults the section
2C1.7 guideline to calculate the offense level for pertinent
crimes.7 A contrary reading, on the other hand, confounds
a uniform, systematic reading of the guidelines by virtue of
a consequently scattershot application, with some portions
of a given guideline applied in computing the offense level
and others applied at some later stage in the process.

The point I make is consistent with the Sentencing
Commission’s contemplation of two distinct types of
departures: those in which "the guidelines provide specific
guidance for departure by analogy or by other numerical or
non-numerical suggestions" and those catch-all departures
that "remain unguided," resting either upon"grounds
referred to in Chapter Five, Part K (Departures) or on
grounds not mentioned in the guidelines." U.S.S.G., ch. 1,
pt. A, 4(b). So-called "guided departures"-- where a
guideline or related commentary suggests that a departure
may be warranted under certain specific circumstances
considered by the Sentencing Commission8 -- "are more
akin to adjustments, such as those in Chapters Two and
Three, which judges use to calculate the applicable
Guidelines range, rather than a departure from the
Guidelines range." Michael S. Gelacak et al., Departures
Under the Federal Sentencing Guidelines: An Empirical and
Jurisprudential Analysis, 81 Minn. L. Rev. 299, 315 (1996);
_________________________________________________________________

7. In fact, Chapter 5 already provides for an analogous departure in
circumstances where a "defendant’s conduct results in a significant
disruption of a governmental function." U.S.S.G.S 5K2.7. At first glance,
the sweeping language of section 5K2.7 would seem to encompass the
departure formulated in Application Note 5 of section 2C1.7. Yet, as even
the government conceded at oral argument and as the majority
acknowledges, the two departures are indeed distinct, a circumstance
which I find indicative of the drafters’ understanding that the more
particularized section 2C1.7, Application Note 5 departure is to be
applied only in the context of the precise guideline in which the
Sentencing Commission deliberately situated it.

8. See, e.g., U.S.S.G. S 2B1.1, Application Note 15; U.S.S.G. S 2D1.1,
Application Note 14; U.S.S.G. S 2G1.2, Application Note 12.

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see also Bruce M. Selya & Matthew R. Kipp, An
Examination of Emerging Departure Jurisprudence Under the
Federal Sentencing Guidelines, 67 Notre Dame L. Rev. 1, 11
(1991) (A "guided" departure involves "instances in which a
guideline or related commentary suggests that under
particular circumstances a departure is warranted.").

Moreover, the application of a section 2C1.7, Application
Note 5 departure after completion of the grouping analysis
lends itself to untenable outcomes. In this case, for
instance, it resulted in the district court’s enhancing
Milan’s punishment for crimes temporally and
substantively unrelated to his abuse of public office. It
created a sentencing anomaly whereby, simply by opting to
try distinct charges together,9 the government was able to
bootstrap a 3-level public corruption departure to the
unconnected money laundering charge which drove the
guideline range (an adjusted offense level of 23 as opposed
to 18 for the corruption counts). Put differently, the court
in essence enhanced the money laundering convictions
(Group One), whose guideline range was calculated
separately under Chapter 2, Section S, on the basis of an
offense-specific departure contained in an unrelated section
of the guidelines concerning public corruption. This
methodology contravened an express design of the grouping
rules to "limit the significance of the formal charging
decision." U.S.S.G. ch. 3, pt. D, Introductory Commentary.
See also U.S.S.G. ch. 1, pt. A, 4(a) ("the Commission has
written its rules for the treatment of multicount convictions
with an eye toward eliminating unfair treatment that might
flow from count manipulation"); U.S.S.G. ch. 1, pt. A, 3 (the
Sentencing Guidelines promote horizontal uniformity in
sentencing by requiring that similarly situated defendants
are sentenced similarly).

In the closest case for comparison of which I am aware,
United States v. Nguyen, 255 F.3d 1335, 1345 (11th Cir.
2001), the Court of Appeals for the Eleventh Circuit
confronted a similar issue with respect to applying a
downward departure under U.S.S.G. S 2A1.1, Application
_________________________________________________________________

9. Of course, the consolidated trial in itself resulted in an increased
combined offense level under the grouping rules.

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Note 1, which provides that a departure may be warranted
in a murder conviction where the defendant did not
intentionally or knowingly cause death. In Nguyen, one of
the defendants was convicted of multiple counts in a RICO
conspiracy, including felony murder. At sentencing the
district court calculated the offense level under section
2A1.1, departed downward 6 levels pursuant to Application
Note 1, and then applied the grouping rules to determine
the combined offense level. See Nguyen, 255 F.3d at 1344-
45.

On appeal, the defendant advanced the government’s
position in this case, namely that the district court first
should have grouped the offenses and then applied the
downward departure to the combined offense level. The
court of appeals disagreed, holding that the section 2A1.1,
Application Note 1 departure was to be considered in the
aforementioned step (b) base offense level determination.
See id. at 1345. In other words, the court implicitly
concluded that a departure identified in the commentary to
an offense guideline is comparable to "specific offense
characteristics, cross references, and special instructions"
for purposes of U.S.S.G. S 1B1.1(b), and thus properly is
considered in determining the base offense level before
grouping. While the majority indicates that Nguyen does
not dissuade it from concluding that Milan’s argument is
incorrect and notes that the Nguyen court addressed the
issue in only a single paragraph, still the Nguyen ruling is
clear and I see no escape from a conclusion that by
reaching our result we are creating a conflict between two
circuits. Of course, as the majority points out, the conflict
reflects an apparent rift between the United States
Attorneys’ offices in New Jersey and the Northern District of
Georgia.10

Overall, I am satisfied that a section 2C1.7, Application
Note 5 departure for systematic or pervasive corruption of
a government function, like "specific offense characteristics,
cross references, and special instructions," may be applied
_________________________________________________________________

10. I do not doubt, however, that sophisticated defense attorneys reading
the opinions here and in Nguyen will conclude that the actual rule is
"heads, the government wins, tails the defendant loses."

                                45


to adjust only the base offense level of the specific,
corruption-related offenses to which it applies. Thus, I
believe that the district court erred when it applied the 3-
level departure to a final combined offense level after
applying the grouping methodology to multiple and
disparate counts. Consequently, I dissent on this point.

A True Copy:
Teste:

         Clerk of the United States Court of Appeals
         for the Third Circuit

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