                             PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT

             _____________

         Nos. 09-3388 & 09-3389
             _____________


     UNITED STATES OF AMERICA,
                    Appellant/Cross-Appellee

                   v.

          VINCENT J. FUMO,
                     Appellee/Cross-Appellant

             _____________

              No. 09-3390
             _____________


     UNITED STATES OF AMERICA,
                        Appellant

                   v.

            RUTH ARNAO

             _____________
             On Appeal from the District Court
          for the Eastern District of Pennsylvania
        (Nos. 06-cr-00319-003 & 06-cr-00319-004)
      District Judge: Honorable Ronald L. Buckwalter

                   Argued May 25, 2011

 Before: FUENTES, GARTH, NYGAARD, Circuit Judges

             (Opinion Filed: August 23, 2011)

Zane David Memeger, Esq.
Robert A. Zauzmer, Esq. [ARGUED]
John J. Pease, Esq.
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

Counsel for Appellant/Cross-Appellee

Samuel J. Buffone, Esq. [ARGUED]
BuckleySandler LLP
1250 24th Street NW, Suite 700
Washington, D.C. 20037

Peter Goldberger, Esq.
50 Rittenhouse Place
Ardmore, PA 19003

Counsel for Appellee/Cross-Appellant Fumo




                            2
Patrick J. Egan, Esq. [ARGUED]
Eric E. Reed, Esq.
Fox Rothschild LLP
2000 Market Street, 10th Floor
Philadelphia, PA 19103

Counsel for Appellee Arnao



                OPINION OF THE COURT


FUENTES, Circuit Judge:

       On July 14, 2010, the United States District Court for
the Eastern District of Pennsylvania sentenced former
Pennsylvania State Senator Vincent J. Fumo to 55 months‟
imprisonment, a $411,000 fine, and $2,340,839 in restitution,
arising from his jury conviction on 137 counts of fraud, tax
evasion, and obstruction of justice. A week later, the District
Court sentenced former Fumo aide Ruth Arnao to
imprisonment of one year and one day, a $45,000 fine, and
joint and several restitution with Fumo of up to $792,802,
arising from her jury conviction on 45 counts of fraud, tax
evasion, and obstruction of justice.         On appeal, the
Government argues that the District Court made numerous
procedural errors in arriving at both sentences. In particular,
the Government asserts that the District Court failed to
announce a final guidelines sentencing range for Fumo.
Fumo cross-appeals, contending that the District Court erred
when it denied his motion for a new trial based on alleged
jury partiality and the District Court‟s admission of evidence




                              3
related to Pennsylvania‟s public employee ethics law. For the
following reasons, we will affirm Fumo‟s conviction, vacate
the sentences of Fumo and Arnao, and remand both for
resentencing before the District Court.

                               I.

A. Background

       Vincent Fumo was a high-profile Pennsylvania state
senator at the center of one of the largest political scandals in
recent state history. Fumo was first elected to the State
Senate in 1978 from a district in South Philadelphia.1 He
eventually became Chairman of the Senate Democratic
Appropriations Committee, which put him in control of
millions of dollars that could be dispensed at his discretion
for legislative purposes. Fumo served in the Pennsylvania
State Senate for thirty years, where it is widely agreed that he
became one of the most powerful political figures in the state.

       During his three decades as a state senator, Fumo
frequently directed his publicly paid Senate employees to
attend to his personal needs and political interests during their
working hours, as well as at night and on weekends. Fumo‟s
Philadelphia district office was staffed by ten such

1
  In 1980, Fumo was convicted of taking part in a scheme to
place local Democratic party workers on the state legislative
payroll as “ghost employees.” Fumo‟s conviction was later
overturned because of a variance between the indictment and
the proof offered at trial—a decision that we affirmed on
appeal. See United States v. Camiel, 689 F.2d 31 (3d Cir.
1982).



                               4
employees, whose duties included providing constituent
services to the residents of Fumo‟s district. However, the
staffers often also provided Fumo with campaign and
personal assistance: organizing political fundraisers and
mailings, processing bills for business accounts, and handling
various aspects of Fumo‟s personal finances. Various aides
also acted as his housekeeper, drove him from place to place,
managed the refurbishment of his 33-room house, ran
personal errands, and even drove his daughter to school.
During Fumo‟s annual trip to Martha‟s Vineyard,
Massachusetts, his Senate aides would drive two vehicles
from Philadelphia and back, filled with the luggage of Fumo
and his guests. Staffers also used their time to assist a
Philadelphia City Councilman who was Fumo‟s ally and, for
two months, to advance the campaign of an ultimately
unsuccessful     Pennsylvania Democratic          gubernatorial
candidate. Moreover, Fumo misused his Senate staff in
Harrisburg—several of them renovated and developed a farm
he had purchased in 2003 as a residential and business
enterprise. In exchange, Fumo arranged salaries for his
employees that were substantially greater than those
designated by the State Senate for comparable Senate
employees.

        Fumo also provided non-staffers, such as contractors,
family members, and girlfriends with access to Senate
resources, including laptops and computer assistance. Further,
he used Senate funds to hire contractors for non-legislative
tasks. For instance, Fumo obtained a $40,000 state contract
for a private investigator who, in addition to his legitimate
activities, conducted surveillance on Fumo‟s former wife,
girlfriends, ex-girlfriends‟ boyfriends, and at times, political
rivals. He obtained an $80,000 state contract for a consultant




                               5
who spent much of his time assisting Fumo with political
races and a $45,000 salary for an individual who spent most
of his time assisting with Fumo‟s farm. Mitchell Rubin, the
boyfriend and later husband of Ruth Arnao, was paid $30,000
per year for five years, without doing much, if any, work at
all.

        In order to facilitate his use of public funds for his own
purposes, Fumo falsely represented that employees and
contractors receiving payment by the Senate were performing
proper and legitimate legislative functions that they only
partially or never in fact completed, and failed to disclose the
private and political services that they were actually
performing. Fumo also provided false job descriptions and
elevated position classifications that conflicted with the duties
that employees actually carried out.

        In 1991, Fumo and his staff founded a non-profit
organization that became known as the Citizens Alliance for
Better Neighborhoods (“Citizens Alliance”). Arnao, a Senate
employee on Fumo‟s staff, became its director. Citizens
Alliance‟s stated purpose was to improve Philadelphia
neighborhoods through projects such as removing trash,
sweeping streets, trimming trees, clearing snow, and cleaning
alleys and abandoned lots. Citizens Alliance received much
of its funding from grants obtained by Fumo from the state
and other entities. In 1998, after Fumo brought litigation
challenging its utility rates, the Philadelphia Electric
Company (“PECO”) privately agreed to donate $17 million to
Citizens Alliance as part of a settlement agreement. The
existence of the $17 million contribution only became public
knowledge in November 2003, when it was reported by the
Philadelphia Inquirer. After the influx of $17 million,




                                6
Citizens Alliance expanded the scope of its work, acquiring
properties for renovation, opening a charter school, and
attempting to develop an office building for high-tech
companies.

       However, concurrent with its expanded efforts, Fumo
and Arnao began to use Citizens Alliance funds for their
personal benefit, including $90,000 for tools and $6,528 for
vacuum cleaners and floor machines used in Fumo‟s homes.
Citizens Alliance also provided Fumo and his staff with
vehicles, including a $38,000 minivan, a $52,000 luxury
SUV, and a $25,000 jeep. In total, more than $387,325 went
towards acquiring and maintaining vehicles for the use of
Fumo, Arnao, legislative aides, and family members. Further,
Citizens Alliance became the landlord of Fumo‟s office on
Tasker Street in Philadelphia. While the Senate spent
$90,000 in rent during a five-year period, Citizens Alliance
spent over $600,000 to furnish, maintain, and rent Fumo‟s
office to him at a discount. The office also served as his
campaign office and ward headquarters. Further, Citizens
Alliance paid for cell phones for many of Fumo‟s staffers, as
well as his daughter. It also paid $39,000 for Fumo‟s trip to
Cuba with five friends and $50,000 for a “war dog” memorial
in Bucks County.

       Fumo used Citizens Alliance in violation of federal
501(c)(3) rules for charitable organizations by having it pay
$250,000 for political polling, $20,000 for a lawsuit against a
Senate rival, and $68,000 to support opposition to the
Government‟s construction of dunes along the Jersey shore,
which would have blocked his seaside house‟s view of the
ocean and reduced its property value. In order to oppose the
dunes, Fumo had his Senate counsel create a nonprofit entity




                              7
called “Riparian Defense Fund, Inc.” to funnel funds from
Citizens Alliance, and then misled the IRS and Pennsylvania
Secretary of State as to the nature and purpose of the
organization. Further, Fumo misrepresented political and
campaign expenses as “community development consulting”
expenses on Citizens Alliance‟s tax filings, deceiving the IRS
yet again.

       Just as he had done with his public employees, Fumo
directed Citizens Alliance staff to assist with his personal
matters, traveling to his house on the Jersey shore to repair
and paint his dock and deck, picking up trash, and
undertaking other errands and tasks. They also frequently
cleaned and served his Philadelphia home, and delivered
equipment and personal items to his farm. Additionally,
Citizens Alliance paid for a $27,000 bulldozer, a lawn tractor,
a dump truck, an all-terrain vehicle, and a Ford F-150 pickup
truck for his Harrisburg-area farm. Fumo and Arnao never
disclosed the funds used for Fumo‟s personal benefit to
Citizens Alliance‟s accountants, and when asked about those
funds by an accountant, Arnao misstated their purpose. Fumo
and Arnao also made repeated misrepresentations to
journalists about Citizens Alliance and how it spent its funds.

       Fumo served on the board of directors of the
Independence Seaport Museum (“ISM”). Board members did
not receive compensation or benefits from the museum, but
were expected to help the museum develop and solicit donors.
While Fumo did not donate or solicit much in the way of
donations for the ISM, he did use his influence to obtain
grants for the museum from the state and other entities.
However, at the expense of the ISM, he also repeatedly used
its yachts for pleasure cruises and its ship models for




                              8
decorations in his home and office. These personal uses of
the ISM‟s resources, which were approved by ISM‟s
president John Carter, were in violation of the museum‟s
policies and bylaws. Fumo later claimed that he used the
yachts to help raise money for the museum and that he
sometimes paid for their use.

        In 2003, the Government began investigating Fumo.
In December, the Philadelphia Inquirer published a series of
articles about Citizens Alliance‟s use of funds and its
relationship with Fumo. Shortly thereafter, Fumo directed a
computer technician on his staff to ensure that all emails to
and from Fumo and others were deleted. When the Inquirer
ran an article entitled “FBI Probes Fumo Deal” on January
25, 2004, Fumo involved additional Senate aides and
expanded the scope of his attempts to delete emails.
Throughout 2004 his aides, including Arnao, deleted email
from numerous computers and communication devices, and
then “wiped” the computers using sophisticated programs in
order to prevent forensic analysis. These efforts included
wiping computers at Arnao‟s home and at Citizens Alliance.
Despite Fumo‟s efforts, two of the aides involved in the
deletion kept emails between each other, including emails
regarding Fumo‟s instructions to eliminate computer evidence
of the fraud.

B. The Trial

       The Government charged Fumo and Arnao under what
was to later become a 141 count superseding indictment.
Counts 1 through 64 related to fraud on the Pennsylvania
State Senate, Counts 65 through 98 to fraud on Citizens
Alliance, Counts 99 through 103 to tax evasion by Citizens




                             9
Alliance, Counts 104 through 108 to fraud on ISM, and
Counts 109 through 141 to obstruction of justice and
conspiracy to commit obstruction of justice. Fumo was
charged in 139 counts, including all but Counts 100 and 102.
At trial, the Government voluntarily moved to dismiss Counts
36 and 38 against Fumo. Arnao was charged in 45 counts,
including Counts 65 through 98, related to the fraud on
Citizens Alliance, Counts 99, 100, and 102, related to tax
evasion, and Counts 109, 121, 124, 126, 127, 129, 132, and
134, related to obstruction of justice.

       The case was originally assigned to the Honorable
William H. Yohn, Jr., and after some delay while Fumo found
satisfactory defense counsel, jury selection began on
September 8, 2008. After the case was reassigned to the
Honorable Ronald L. Buckwalter, jury selection resumed on
October 20, 2008. The trial lasted an additional five months,
with the proceedings halted on Fridays. By the time it rested
its case on January 26, 2009, the Government had called 80
witnesses in its case-in-chief. The defendants then called an
additional 25 witnesses, including Fumo himself, and rested
their case on February 18, 2009. On March 16, 2009, after
four days of deliberation, the jury convicted Fumo of all 137
counts presented against him, and Arnao of all 45 counts
presented against her.

       A number of events occurred during the trial that
Fumo now asserts as the bases for his cross-appeal. First,
during the trial, the Government called John J. Contino as an
expert witness to testify about the Pennsylvania Public
Official and Employee Ethics Act, 65 Pa. Con. Stat. Ann. §
1101, et seq. (the “Ethics Act”). Contino is the Executive
Director of the State Ethics Commission (the “Commission”),




                             10
the body charged with enforcing the Ethics Act. Section
1103(a) of The Ethics Act prohibits a public official or
employee from engaging in conduct that constitutes a
“conflict of interest,” which is defined at § 1102 as the “[u]se
by a public official or public employee of the authority of his
office or employment . . . for the private pecuniary benefit of
himself, a member of his immediate family or a business with
which he or a member of his immediate family is associated.”

       Prior to the trial, Judge Yohn had found Contino to be
“well qualified” as an expert and ruled that it was
“appropriate for him to talk about the Ethics Act.” (J.A. 431).
During trial, Contino testified as to how and to whom the
Ethics Act applied, whether it was mandatory in nature, and
as to how the legislature was apprised of the Ethics Act and
the Commission‟s interpretation of it.          Contino also
referenced abridged versions of the Commission‟s opinions,
summarizing violations that were considered and ruled upon
by the Commission. He did not, however, express an opinion
as to whether Fumo‟s own actions violated the Ethics Act or
whether Fumo was guilty of the federal charges against him.

       The Government also extensively cross-examined
Fumo on the subject of the Ethics Act and specifically his
knowledge and understanding of it. At the time of the cross-
examination, the District Court provided a limiting instruction
to the jury, reminding them that no law required Fumo to
study the decisions or reports of the Commission.

       At the conclusion of the trial, the District Court further
instructed the jury on the Ethics Act, telling them that they
could “consider [such] evidence . . . to the extent that [they]
find it sheds light on questions of willfulness, intent to




                               11
defraud, and good faith” but that “violation of the ethics laws
should not be considered by [them] as implying a violation of
federal criminal law” and that they “may not convict Fumo of
any of the counts alleging that he conspired or attempted to
execute a scheme to defraud the Senate of money or property
simply on the basis of the conclusion that he may have
violated a state ethics law.” (J.A. 4363).

        On March 15, 2009, while jury deliberations were
ongoing, a local television station reported that one of the
jurors, hereinafter referred to as “Juror 1,” had made postings
on both his Facebook and Twitter pages related to the trial.
That night, which was the night before the jury returned its
verdict, Juror 1 was watching television when he learned that
the media was following the comments he had made on the
internet.    He subsequently panicked and deleted the
comments from his Facebook page.

        Prior to deleting them, Juror 1 made the following
comments on his Facebook “wall” during jury selection and
the trial:

       -- Sept. 18: (apparently upon a continuance of
       the trial due to judge‟s illness): “[Juror 1] is
       glad he got a 5 week reprieve, but still could use
       the money . . .”

       -- Jan. 11:    (apparently referring to the end of
       the government‟s case): “[Juror 1] is wondering
       if this could be the week to end Part 1?”

       -- Jan. 21:    “[Juror 1] wonders if today will
       really be the end of Part 1???”




                              12
      -- Mar. 4:   (conclusion       of      closing
      arguments): “[Juror 1] can‟t believe tomorrow
      may actually be the end!!!”2

      -- Mar. 8:   (Sunday evening before second
      day of deliberations): “[Juror 1] is not sure
      about tomorrow . . .”3

      -- Mar. 9:    (end     of    second    day of
      deliberations): “[Juror 1] says today was
      much better than expected and tomorrow looks
      promising too!”

      -- Mar. 13: (Friday after completion of first
      week of deliberations): “Stay tuned for the big
      announcement on Monday everyone!”

(J.A. 587-88).

      Juror 1‟s Facebook comments appeared over the many
months of the trial, and in the midst of dozens of other
comments he made unrelated to the trial. It was the final,
March 13 post that was the subject of media attention. With

2
  A friend responded to the March 4 Facebook post by asking
“of what?” Juror 1 responded: “Can‟t say till tomorrow!
LOL.” (J.A. 592 n.30).
3
  A friend responded to the March 8 Facebook post by asking
“Why?” Juror 1 responded: “think of the last 5 months dear.”
(J.A. 592).




                            13
regard to Twitter, Juror 1 made a single comment or “tweet”
on March 13, stating “This is it . . . no looking back now!”
(J.A. 587).

       When Fumo learned of Juror 1‟s Facebook and Twitter
comments, he moved to disqualify Juror 1 from the jury. The
District Court held an in camera review of the issue, and
questioned Juror 1 about his activities on these two websites
and his general media consumption. Juror 1 told the judge
that he saw the news report that night because he had been
watching another show when the local news began. He
nevertheless explained that he had avoided television news
during the entire trial. He also affirmed that he had not
discussed the substance of the case with anyone. Juror 1
further stated that he had made the comments “for my benefit
to just get it out of my head, similar to a blog posting or
somebody journaling something.” (J.A. 589).

       In a written opinion, the District Court determined that
there was no evidence that Juror 1 received outside influence
due to his Facebook or Twitter postings and concluded that,
although in violation of his instruction not to discuss the case
outside of the jury room, they were “nothing more than
harmless ramblings having no prejudicial effect. They were
so vague as to be virtually meaningless.” (J.A. 592).

       More than three months after the verdict, but before
sentencing, Fumo filed a second motion for a new trial,
attaching the affidavit of counsel Dennis Cogan. The
affidavit asserted that journalist Ralph Cipriano, writing for
Philadelphia Magazine, had contacted Cogan regarding
information he obtained during post-verdict interviews with
several jurors. According to an article written by Cipriano,




                              14
on the morning of March 16, the day of the verdict, all of the
jurors had heard media reports about Juror 1‟s use of
Facebook and Twitter. Further, another juror hereinafter
referred to as “Juror 2,” indicated that while at her workplace
on a Friday, several co-workers informed her of Fumo‟s prior
overturned conviction, as well as the conviction and
imprisonment of John Carter, former president of the ISM.
Both of these facts had previously been excluded from the
trial by the District Court. Specifically, the article stated that
Juror 2 had told Cipriano that:

               Co-workers stopped by and talked about
       things in the media, such as Fumo‟s prior 1980
       conviction, subsequently overturned by a judge,
       for hiring ghost employees. Judge Buckwalter
       repeatedly turned down prosecution requests to
       tell the jury about that prior conviction. But
       [Juror 2] found out anyway, even though she
       held up her hands and told co-workers: Please
       don’t talk to me, I can’t discuss the case. Co-
       workers also told her that John Carter, former
       president of the Independence Seaport Museum,
       and the guy who gave Fumo permission to take
       free yacht trips, was doing time for fraud. The
       judge didn‟t want the jury to know about Carter,
       either.

(J.A. 703-04) (emphasis in original). There was no evidence
that any other juror had learned of Fumo‟s prior conviction or
the conviction of Carter, and the other five jurors interviewed
by Cipriano did not mention either fact.

       The District Court denied the motion, concluding that




                               15
the information was an insufficient basis to hold a hearing
and that, even if everything asserted by Juror 2 were true, it
would not constitute the showing of substantial prejudice
required to grant a new trial.

C. Sentencing

        On July 8, the District Court held a sentencing hearing
at which the parties made arguments directed at the
sentencing guidelines calculations for both Fumo and Arnao.
The Government adopted the position of the Pre-sentence
Report (“PSR”), which divided Fumo‟s crimes into two
groups pursuant to § 3D1.2 of the Sentencing Guidelines—
the first made up of the 134 fraud and obstruction of justice
counts, and the second consisting of the three tax evasion
counts (Counts 99, 101, and 103).

       As to the first group, the PSR began with a base
offense level of 7 under U.S.S.G. § 2B1.1(a)(1). It then
added 18 levels under § 2B1.1(b)(1)(J) because it calculated
the loss from the fraud to be greater than $2,500,000, and
specifically $4,339,041. The PSR then added 2 levels under §
2B1.1(b)(8)(A) because it concluded Fumo misrepresented
that he was acting on behalf of a charitable organization,
Citizens Alliance. Similarly, it added 2 levels under §
2B1.1(b)(9)(C) because the fraud involved the use of
sophisticated means, in that Fumo used a shell corporation,
Eastern Leasing Corp., to purchase vehicles for his personal
use and conduct political polling, and used a consulting firm
as a conduit to conceal his role in a lawsuit against one of his
political rivals. The PSR added an additional 4 levels under §
3B1.1(a) for Fumo‟s role as the organizer or leader of the
fraud, and 2 levels under § 3B1.3 because he was in a




                              16
position of public trust. Finally, under § 3C1.1, it added 2
levels for Fumo‟s obstruction of justice during the
investigation of the offense, and 2 levels for his obstruction of
justice in perjuring himself at trial. In total, the PSR
calculated Fumo‟s adjusted offense level for the fraud group
as 39.

       As to the tax evasion group, the PSR began with a base
offense level of 24 under §§ 2T1.1(a)(1) and 2T4.1(J) because
the tax loss was more than $2,500,000, and specifically
$4,624,300. It then added 2 levels under § 2T1.1(b)(2)
because the offense involved sophisticated means, for a total
adjusted offense level of 26.

        Because the tax evasion group‟s offense level of 26
was more than 8 levels below the fraud group‟s offense level
of 39, pursuant to § 3D1.4(c), no additional levels were added
to the larger of the two. Accordingly, the PSR calculated, and
the Government argued, that the District Court should find
Fumo‟s total adjusted offense level to be 39 and his criminal
history category to be I, which would mean a guideline range
of 262 to 327 months‟ imprisonment.

       The day after the July 8 hearing, the District Court
issued an order ruling that it would not apply the 2-level
enhancement for charitable misrepresentation, the 2-level
enhancement for sophisticated means, or the second 2-level
obstruction of justice enhancement for perjury at trial. It also
calculated the total loss from the fraud to be $2,379,914—
about $2,000,000 less than the Government‟s calculation and
a reduction of 2 additional levels. The District Court also
declined to apply the 2-level enhancement for sophisticated
means to the tax evasion group. Additionally, Fumo




                               17
requested two downward departures based on his physical
health under § 5H1.4 and for extraordinary public service
under § 5H1.11. The District Court denied the former and
reserved judgment on the latter until the final sentencing
hearing. With reduced adjusted offense levels of 31 and 24
for the fraud and tax evasion groups, respectively, the
combined offense level became 32 under § 3D1.4(b),
translating into a guideline range of 121 to 151 months‟
imprisonment.

        On July 14, the District Court held another lengthy
hearing. When the Government learned that the Court had
calculated a guideline range of 121 to 151 months, it sought
an upward variance, arguing that the adjusted range did not
adequately represent or take into account the full loss from
the fraud, the damage to public institutions, Fumo‟s alleged
perjury at trial, other obstructive conduct, and Fumo‟s alleged
lack of remorse. The District Court declined to vary upwards.
It also denied Fumo‟s request for a departure on the basis of
his medical condition. Then, after hearing from six witnesses
who spoke on Fumo‟s behalf, and reviewing hundreds of
letters from the public, it found that Fumo had “worked hard
for the public and . . . worked extraordinarily hard” such that
it would “grant a departure from the guidelines.” (J.A. 1622-
23). Without enunciating any modification to the guideline
range of 121 to 151 months, the District Court then sentenced
Fumo to a term of imprisonment of 55 months, three years of
supervised release, a $411,000 fine, a $13,700 special
assessment, $2,084,979 in restitution, and $255,860 in
prejudgment interest on the restitution.

      Fumo filed a Motion for Correction of Sentence under
Federal Rule of Criminal Procedure 35(a), asking the Court to




                              18
resolve various issues related to the sentence. Among the
issues raised was the fact that the District Court had, during
the July 14 sentencing hearing, three times referred to the
sentence as a “departure” from the guidelines range. The
motion papers noted that “[w]hen a sentencing court grants a
true „departure,‟ [as opposed to a variance,] it must „state how
the departure affects the Guidelines calculation.‟ This Court[]
fail[ed] to make such a statement . . . .” (J.A. 1629) (quoting
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en
banc)). They also suggested that “[i]n context, it appears that
the Court intended the sentence as a statute-based „variance,‟
designed to achieve a punishment sufficient but not greater
than necessary to fulfill the objectives set forth at 18 U.S.C. §
3553(a)(2), rather than as a Guidelines Manual-based
„departure.‟” (J.A. 1629). Fumo asked that the Court
“correct this technical error.” (J.A. 1629). The Government
filed a response, contesting Fumo‟s characterization of the
Court‟s below-guideline sentence as a variance and noting
that “the Court repeatedly stated that it decided to grant the
departure motion based on public service.” (J.A. 1635).

       The following day, the District Court issued a
Memorandum and Order, which among other things,
explained that “[t]he government correctly states that the
court announced it was granting a departure. Thereafter, the
court never enunciated the guideline level to which it
departed, and, in fact, never reached the sentence it did by
consulting any specific level on the guideline chart.” (J.A.
1653). The District Court also filed a Judgment and a formal
Statement of Reasons. The Statement read, in pertinent part:

            I next determined whether there should
       be a departure from the guidelines and




                               19
      announced at the sentencing hearing that there
      should be based on my finding extraordinary
      good works by the defendant. I did not
      announce what specific guideline level the
      offense fell into; that is to say, the precise
      number of levels by which I intended to depart
      because until I considered all other sentencing
      factors, I could not determine in precise months
      the extent that I would vary from the guidelines.

             Having advised counsel of the offense
      level that I found and my intent to depart
      downward, I then proceeded to hear from
      counsel their respective analyses of what an
      appropriate sentence should be.

             The procedure I followed was perhaps
      more akin to that associated with a variance
      than a downward departure because I never
      announced nor have I ever determined to what
      guideline level I had departed. Ultimately, the
      argument over which it was elevates form over
      substance.

(Sealed App. 185-86). The Statement of Reasons further
indicated that the Court had granted Fumo a departure under
§ 5H1.11 of the Sentencing Guidelines for “Military Record,
Charitable Service, Good Works.”

       After sentencing Fumo, the District Court held a
sentencing hearing for Arnao.        The PSR originally
recommended, and the Government argued, that the loss from
Arnao‟s fraud was between $1 and $2.5 million, leading to an




                             20
offense level of 23 under § 2B1.1(b)(1)(I) of the Sentencing
Guidelines.       The PSR also recommended 2-level
enhancements for the use of sophisticated means,
misrepresentation on behalf of a charitable organization, and
obstructions of justice, generating a total adjusted offense
level of 29. Just as for Fumo, the PSR‟s offense level
calculation for the tax evasion group began with a base
offense level of 24 and then added 2 levels because the
offense involved sophisticated means, for a total adjusted
offense level of 26. Under the grouping rules of § 3D1.4, two
additional levels were added to the higher offense level of 29,
making the combined offense level 31. With a criminal
history category of I, this entailed a sentencing range of 108
to 135 months.

       At the hearing, the District Court rejected the
sophisticated means enhancement and determined that the
loss from the Citizens Alliance fraud was less than
$1,000,000, and specifically $958,080, thus reducing the
fraud and tax evasion group offense levels to 25 and 24,
respectively. This created a combined total offense level of
27 under the grouping rules of § 3D1.4 and a guidelines
sentencing range of 70 to 87 months. The District Court then
imposed a sentence of one year and one day—a substantial
downward variance—to run concurrently on all counts, three
years‟ supervised release, a $45,000 fine, a $4,500 special
assessment, and restitution to Citizens Alliance in the amount
of $792,802, jointly and severally with Fumo.

                                II.4


4
    The District Court had jurisdiction over this matter under 18



                                21
                Appeal of Fumo’s conviction

A. Evidence relating to the Pennsylvania Ethics Act

       In his appeal of the conviction, Fumo argues that the
evidence presented by the Government with regard to the
state Ethics Act was irrelevant to the federal criminal charges
against him, and was highly prejudicial because it was likely
to confuse the jury and suggest that Fumo was in violation of
state law.     The District Court‟s rulings regarding the
admissibility of evidence and expert testimony are reviewed
for abuse of discretion. United States v. Mathis, 264 F.3d
321, 335 (3d Cir. 2001); United States v. Serafini, 233 F.3d
758, 768 n.14 (3d Cir. 2000).

       The Government responds that evidence regarding the
Ethics Act was of substantial relevance because it was
necessary to show that the Senate did not approve of the kind
of expenditures Fumo made using state money, as well as to
show that Fumo intended to deceive the Senate by misleading
it about how he was spending that money. The Government
notes that this was particularly true given Fumo‟s initial
theory of the case at trial—that no rules or laws barred
employing Senate resources for his personal use, or that if
there were such rules, that they were entirely vague, unclear,
and unenforced. Fumo also initially planned to call three
experts regarding their experiences with the “customs and
practices of the Senate,” focusing specific attention on
“accepted uses of staff and other resources as they comport
with the Ethics Act.” (Gov. Supp. App. 64).


U.S.C. § 3221, and we have jurisdiction pursuant to 18 U.S.C.
§ 3742(b) and 28 U.S.C. § 1291.



                              22
        In light of Fumo‟s theory of the case, the content and
enforcement of the Ethics Act was clearly relevant to the
Government‟s claim that there were rules that Fumo broke
repeatedly, that those rules were clear enough for him to
understand, and to show that he was deceiving the Senate
when he misrepresented or omitted aspects of his actions and
expenditures to avoid the perception that he had violated
those rules. Without this evidence, it would have been very
difficult for the Government to prove fraudulent intent. See
United States v. Copple, 24 F.3d 535, 545 (3d Cir. 1994)
(“Proving specific intent in mail fraud cases is difficult, and,
as a result, a liberal policy has developed to allow the
government to introduce evidence that even peripherally
bears on the question of intent.”). Further, the District Court
read the jury a jointly drafted instruction, both during the trial
and after the closings, which emphasized that Fumo was not
on trial for violating the Ethics Act, and that even a violation
of the Ethics Act by itself did not imply that he defrauded or
conspired to defraud the Senate. The District Court‟s finding
that evidence related to the Ethics Act was relevant and not
unfairly prejudicial was not an abuse of discretion.

        Similarly, it was not an abuse of discretion for the
District Court to permit John Contino, the Director of the
State Ethics Commission, to testify about the Ethics Act. We
have previously explained that “[w]hile it is not permissible
for a witness to testify as to the governing law since it is the
district court‟s duty to explain the law to the jury, our Court
has allowed expert testimony concerning business customs
and practices.” United States v. Leo, 941 F.2d 181, 196 (3d
Cir. 1991). These customs and practices will sometimes
include applicable legal regulations, such as registration




                               23
requirements for securities registration under the Securities
Acts, Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 218-
19 (3d Cir. 2006), or Medicaid rules, United States v. Davis,
471 F.3d 783, 789 (7th Cir. 2006). Similarly, expert
testimony may also concern ethics rules and laws related to
public officials and government contractors.

        Appropriately, Contino never testified as to whether
Fumo himself had violated the Ethics Act, or whether he was
guilty of any of the crimes with which he was charged.
Contino also properly explained the Commission‟s
disciplinary proceedings, its advisory opinions, and the
annual report it publishes, which is distributed to every state
legislator. This was evidence relevant to the question of
whether Fumo was aware of the Senate ethics rules, and thus
had an intent to defraud when he represented and omitted
facts in a way that made him falsely appear to be in
compliance with those rules. Part of Contino‟s explanation of
the seriousness and mandatory nature of the rules was a
description of some of the Commission‟s disciplinary
opinions, and the penalties that were imposed for violations
of the rules. The Government also properly posed questions
to Contino about whether certain hypothetical facts would
constitute violations of the Ethics Act—a line of questioning
it had suggested in its pretrial disclosures and later pursued in
light of Fumo‟s theory of the case.

       Finally, the Government‟s cross-examination of Fumo
on the subject of the Ethics Act was also appropriate. During
direct examination, Fumo testified that “there are no rules[,]”
as to his exercise of discretion regarding spending and that
“there are no guidelines” as to whether staffers can do
personal errands for lawmakers. (J.A. 3967). He then




                               24
claimed that “none of this is written down anywhere, and I
think it‟s left up to the discretion of the senator to do that as
you see fit and appropriate and as you need it.” (J.A. 3967).
Accordingly, in order to impeach this testimony, the
Government understandably questioned Fumo about his
familiarity with the annual reports of the Commission that
were sent to him personally. Fumo denied ever having read
the annual reports of the Commission, although he admitted
being aware of them. Yet merely because this line of
questioning did not turn out to be directly fruitful for the
Government—although it very well may have undermined
Fumo‟s credibility—does not mean that it was irrelevant or
unfairly prejudicial. As a precaution, however, the District
Court instructed the jury that Fumo was, among other things,
not required to have read the annual reports.

        In sum, the District Court was well within the bounds
of its discretion in admitting the expert testimony of Contino
and permitting the cross-examination of Fumo on the issue of
the Ethics Act.




                               25
B. Challenges to the jury’s fairness and impartiality

       Fumo challenges two rulings of the District Court
denying his motions for a new trial on account of jurors‟
exposure to extraneous information, and the purported
prejudice and partiality that may have resulted. We review a
court‟s order “which denies a new trial based on alleged
prejudicial information for abuse of discretion.” United
States v. Urban, 404 F.3d 754, 777 (3d Cir. 2005) (internal
quotation and citation omitted). “A new trial is warranted if
the defendant likely suffered „substantial prejudice‟ as a result
of the jury‟s exposure to the extraneous information.” Id.
(quoting United States v. Lloyd, 269 F.3d 228, 238 (3d Cir.
2001)). “In examining for prejudice, we must conduct an
objective analysis by considering the probable effect of the
allegedly prejudicial information on a hypothetical average
juror.” Id. (quoting Lloyd, 269 F.3d at 238 (internal quotation
omitted)). Yet, the “court may inquire only into the existence
of extraneous information” and not “into the subjective effect
of such information on the particular jurors.” Wilson v.
Vermont Castings Inc., 170 F.3d 391, 394 (3d Cir. 1999).

        “If there is reason to believe that jurors have been
exposed to prejudicial information, the trial judge is obliged
to investigate the effect of that exposure on the outcome of
the trial.” United States v. Console, 13 F.3d 641, 669 (3d Cir.
1993) (internal quotation omitted). However, the court is not
required to conduct an investigation where an insufficient
factual basis for it exists. Id. Further, even if a foundation
has been established for the claim, the court need not hold a
hearing “at the behest of a party whose allegations if
established would not entitle it to relief.” United States v.
Gilsenan, 949 F.2d 90, 97 (3d Cir. 1991). Accordingly, if the
Court declines to hold a hearing, it must assume that the party
seeking the hearing is able to prove that the jury was
presented with extraneous information, id., and determine
whether “the defendant likely suffered „substantial prejudice‟
as a result of the jury‟s exposure.” Lloyd, 269 F.3d at 238
(internal citation omitted).

                               26
1. Juror 1’s comments on Facebook and Twitter

       Fumo argues that Juror 1‟s comments on Facebook
and Twitter brought widespread public attention to the jury‟s
deliberations, creating a “cloud of intense and widespread
media coverage . . . and [the] public expectation that a verdict
[wa]s imminent[,]” thereby violating his Sixth Amendment
right to a fair and impartial trial. (Cross-App‟t Br. 131).
Fumo also argues that the fact that Juror 1 watched the
evening news, in which his own internet comments were
discussed, implies or suggests that he may have been
compromised by bias or partiality.

       In 2009, the Judicial Conference Committee on Court
Administration and Case Management published proposed
model jury instructions regarding “The Use of Electronic
Technology to Conduct Research on or Communicate about a
Case.” While the instructions focus on the importance of
jurors not consulting websites or blogs to research or obtain
information about the case, they also caution and instruct
jurors on the use of social media:

       Before Trial:

              ....

              Until you retire to deliberate, you may
       not discuss this case with anyone, even your
       fellow jurors. After you retire to deliberate, you
       may begin discussing the case with your fellow
       jurors, but you cannot discuss the case with
       anyone else until you have returned a verdict
       and the case is at an end. I hope that for all of
       you this case is interesting and noteworthy. I
       know that many of you use cell phones,
       Blackberries, the internet and other tools of
       technology. You also must not talk to anyone
       about this case or use these tools to
       communicate electronically with anyone about
       the case. This includes your family and friends.
                              27
      You may not communicate with anyone about
      the case on your cell phone, through e-mail,
      Blackberry, iPhone, text messaging, or on
      Twitter, through any blog or website, through
      any internet chat room, or by way of any other
      social    networking     websites,   including
      Facebook, My Space, LinkedIn, and YouTube.

      At the Close of the Case:

             During your deliberations, you must not
      communicate with or provide any information
      to anyone by any means about this case. You
      may not use any electronic device or media,
      such as a telephone, cell phone, smart phone,
      iPhone, Blackberry or computer; the internet,
      any internet service, or any text or instant
      messaging service; or any internet chat room,
      blog, or website such as Facebook, My Space,
      LinkedIn, YouTube or Twitter, to communicate
      to anyone any information about this case or to
      conduct any research about this case until I
      accept your verdict.

Proposed Model Jury Instructions: The Use of Electronic
Technology to Conduct Research on or Communicate about a
Case, Judicial Conference Committee on Court
Administration and Case Management, December 2009,
available                                              at
http://www.uscourts.gov/uscourts/News/2010/docs/DIR10-
018-Attachment.pdf (last visited August 22, 2011).

       We enthusiastically endorse these instructions and
strongly encourage district courts to routinely incorporate
them or similar language into their own instructions. Not
unlike a juror who speaks with friends or family members
about a trial before the verdict is returned, a juror who
comments about a case on the internet or social media may
engender responses that include extraneous information about
the case, or attempts to exercise persuasion and influence. If
                             28
anything, the risk of such prejudicial communication may be
greater when a juror comments on a blog or social media
website than when she has a discussion about the case in
person, given that the universe of individuals who are able to
see and respond to a comment on Facebook or a blog is
significantly larger.

        Yet while prohibiting and admonishing jurors from
commenting—even obliquely—about a trial on social
networking websites and other internet mediums is the
preferred and highly recommended practice, it does not
follow that every failure of a juror to abide by that prohibition
will result in a new trial. Rather, as with other claims of juror
partiality and exposure to extraneous information, courts must
look to determine if the defendant was substantially
prejudiced.

       Here, with regard to Juror 1‟s posts, none of Fumo‟s
theories of bias or partiality is plausible, let alone sufficient
for us to find that the District Court abused its discretion in
denying his motion for a new trial.5 The District Court
questioned Juror 1 in camera at length about both his
comments online and his efforts to avoid media coverage of
the case. The Court found no evidence that Juror 1 had been
contacted regarding the posts, or that Juror 1 had been
accessing media sources beyond the single incident when he
accidently learned of the attention that the media and public
were paying to his comments. The Court also concluded that

5
  Fumo also highlights the extensive media coverage that was
focused on Fumo‟s trial in the Philadelphia media market. He
suggests that the District Court did not adequately recognize
or address this media attention, and too infrequently
instructed the jury to avoid media coverage of the case. Yet
Fumo concedes that the District Court gave such instructions
on six different occasions throughout the trial, including at
the beginning of voir dire on September 8, 2008. The District
Court was well within its discretion in how it chose to instruct
the jury about media exposure.

                               29
the posts on Facebook were “so opaque that there was no
possible way that members of [Facebook‟s] Philadelphia
network could read them and have any obvious understanding
of his discussion.” (J.A. 591). It then described the posts as
“nothing more than harmless ramblings having no prejudicial
effect. They were so vague as to be virtually meaningless.
[Juror 1] raised no specific facts dealing with the trial, and
nothing in these comments indicated any disposition toward
anyone involved in the suit.” (J.A. 592). We largely agree
with these characterizations of the comments. Finally, the
District Court found that despite violating its prohibition
against discussing the details of the trial, “[Juror 1] was a
trustworthy juror who was very conscientious of his duties.
There was no evidence presented by either party showing that
his extra-jury misconduct had a prejudicial impact on the
Defendants.” (J.A. 597-98).

        In light of these findings, which were based in large
part on Juror 1‟s in-person testimony and demeanor, there is
simply no plausible theory for how Fumo suffered any
prejudice, let alone substantial prejudice, from Juror 1‟s
Facebook and Twitter comments. Nor does Fumo provide a
plausible theory for how the fact that other jurors may have
learned of Juror 1‟s “vague” and “virtually meaningless”
comments on Facebook could have led to substantial
prejudice against him. Accordingly, the District Court did not
abuse its discretion when it denied Fumo‟s motion for a new
trial on this basis.

2. Juror 2’s exposure to excluded evidence

        Three months after his conviction, Fumo‟s counsel
alleged that Juror 2 had learned from co-workers, during the
trial, about both Fumo‟s prior overturned conviction for
hiring ghost employees, as well as the conviction of the
former ISM president, John Carter, on charges of fraud. Both
of these pieces of evidence had been excluded from the trial
by the District Court. In contrast to allegations of bias made
during a trial, we “are always reluctant to haul jurors in after
they have reached a verdict in order to probe for potential
                              30
instances of bias, misconduct or extraneous influences. As
we have said before, post-verdict inquiries may lead to evil
consequences: subjecting juries to harassment, inhibiting
juryroom deliberation, burdening courts with meritless
applications, increasing temptation for jury tampering and
creating uncertainty in jury verdicts.” Gilsenan, 949 F.2d at
97 (quoting United States v. Ianniello, 866 F.2d 540, 543 (2d
Cir. 1989)). “It is qualitatively a different thing to conduct a
voir dire during an ongoing proceeding at which the jury is
part of the adjudicative process than to recall a jury months or
years later for that purpose.” Id. at 98.

       Here, the District Court rejected the foundational basis
of the allegations that Juror 2 had learned of excluded
evidence from co-workers. It characterized defense counsel‟s
double-hearsay affidavit, which recounted the reporter‟s
interviews with the jurors, as lacking the “clear, strong,
substantial, and incontrovertible evidence that a specific,
nonspeculative impropriety occurred.” (J.A. 692). We need
not address the question of whether there was sufficient
foundational basis for a hearing, however, because we agree
with the District Court that even if everything reported by
Cipriano about what Juror 2 learned from her co-workers
were true, it would not be sufficient for a showing of
“substantial prejudice.” We also need not determine which
party has the burden of persuasion in deciding this issue, as
even if the burden were on the Government to show the lack
of substantial prejudice, we find that it pointed to sufficient
evidence in the record for the District Court to conclude that
it made such a showing.

        The factors we have looked to in determining whether
there was substantial prejudice include whether (1) “the
extraneous information . . . relate[s] to one of the elements of
the case that was decided against the party moving for a new
trial,” Lloyd, 269 F.3d at 239; (2) “the extent of the jury‟s
exposure to the extraneous information; [(3)] the time at
which the jury receives the extraneous information; [(4)] the
length of the jury‟s deliberations and the structure of the
verdict; [(5)] the existence of instructions from the court that
                              31
the jury should consider only evidence developed in the
case[,]” Urban, 404 F.3d at 778 (quoting Lloyd, 269 F.3d at
240-41); and (6) whether there is “a heavy volume of
incriminating evidence[.]” Lloyd, 269 F.3d at 241 (internal
quotation omitted).

       Here, while the fourth and to some extent the first
factor weigh in Fumo‟s favor, they are easily overwhelmed
by the second, fifth, and sixth factors, which weigh heavily
against a finding of substantial prejudice. First, while
knowledge of Fumo‟s earlier conviction had some potential
for prejudice, the fact that the conviction occurred nearly
thirty years prior, in 1980, as well as the fact that it was
overturned, are mitigating factors. Perhaps most importantly,
the fact that only one juror was exposed to a brief verbal
summary of the excluded evidence from her coworkers is a
compelling consideration against a finding of prejudice. See
Urban, 404 F.3d at 778 (finding that the extent of the jury‟s
exposure to a news article “was limited to non-existent, thus
supporting the absence of prejudice” where only one juror
had read the prejudicial article, and four others had “looked at
the picture on the first page . . . or glanced at [its] contents”).
Moreover, the District Court gave careful and repeated
instructions to the jurors, including immediately before
deliberation, that they should “not let rumors, suspicions, or
anything else that [they] may have seen or heard outside of
the court influence [their] decision in any way.” (J.A. 4631).
Curative instructions cannot fix every mistake, but we do
generally presume that juries follow their instructions. United
States v. Liburd, 607 F.3d 339, 344 (3d Cir. 2010). Finally,
the sixth factor—the heavy volume of incriminating
evidence—also weighs heavily against a finding of prejudice.
The Government‟s case was presented over the course of
three months and included an astonishing 80 witnesses.
Further, as the Government accurately explains in footnote 16
of its opening brief, “Fumo testified at trial [and] admitted
many of the acts alleged in the indictment, but asserted they
were not criminal . . . .” (Appellant Br. 44 n.16). While
many of the physical facts related to the fraud were therefore
largely undisputed, the active destruction of computer records
                                32
related to the fraud provided particularly potent evidence of
Fumo‟s motive, knowledge and intent.

       In light of these factors, and even assuming that the
Government had the burden of persuasion, the District Court
did not abuse its discretion when it found that Juror 2‟s
exposure to extraneous information was unlikely to have led
to substantial prejudice.6

                              III.

                 Appeal of Fumo’s sentence

       “In sentencing a defendant, district courts follow a
three-step process: At step one, the court calculates the
applicable Guidelines range, which includes the application
of any sentencing enhancements.” United States v. Wright,
642 F.3d 148, 152 (3d Cir. 2011) (citing Tomko, 562 F.3d at
567; United States v. Shedrick, 493 F.3d 292, 298 n.5 (3d Cir.

6
  Fumo‟s alternative argument that any exposure to potentially
prejudicial extraneous information constitutes a “structural
error” in the trial that requires automatic reversal is entirely
unsupported and unpersuasive. The cases Fumo cites for this
proposition concern a court that presented an erroneous
definition of “beyond a reasonable doubt” to the jury,
Sullivan v. Louisiana, 508 U.S. 275 (1993), and a judge who
both presided over a grand jury hearing and then subsequently
presided over and found guilty of criminal contempt a witness
who had testified at the grand jury hearing. In re Murchison,
349 U.S. 133 (1955). While both concerned the right to a fair
trial, they addressed very different aspects of that right, where
prejudice is presumed and cannot be rebutted.

       Similarly, Fumo‟s argument that the extraneous
information violated his right to counsel and his right to
confront witnesses against him also fails, as both challenges,
like his challenge to the impartiality of the jury, require that
there be prejudice. United States v. De Peri, 778 F.2d 963,
976 (3d Cir. 1985).
                               33
2007)). “At step two, the court considers any motions for
departure and, if granted, states how the departure affects the
Guidelines calculation.” Id. (citing Tomko, 562 F.3d at 567).
“At step three, the court considers the recommended
Guidelines range together with the statutory factors listed in
18 U.S.C. § 3553(a) and determines the appropriate sentence,
which may vary upward or downward from the range
suggested by the Guidelines.” Id. (citing Tomko, 562 F.3d at
567).

        “Our review of a criminal sentence . . . proceeds in two
stages. First, we review for procedural error at any
sentencing step, including, for example, failing to make a
correct computation of the Guidelines range at step one,
failing to rely on appropriate bases for departure at step two,
or failing to give meaningful consideration to the § 3553(a)
factors at step three.” Id. (internal citations and quotations
omitted). “If there is no procedural error, the second stage of
our review is for substantive unreasonableness, and we will
affirm the sentence unless no reasonable sentencing court
would have imposed the same sentence on that particular
defendant for the reasons the district court provided.” Id.
(quoting Tomko, 562 F.3d at 568) (internal quotation
omitted). Here, the Government does not challenge the
substantive reasonableness of either Fumo‟s or Arnao‟s
sentence—it only alleges procedural error.

       “The abuse-of-discretion standard applies to both our
procedural and substantive reasonableness inquiries.” Tomko,
562 F.3d at 567 (citing Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Wise, 515 F.3d 207, 217-18 (3d Cir.
2008)). “For example, an abuse of discretion has occurred if
a district court based its decision on a clearly erroneous
factual conclusion or an erroneous legal conclusion.” Id. at
567-68 (citing Wise, 515 F.3d at 217).

        Our dissenting colleague argues that the proper
standard of review for the District Court‟s failure to arrive at
a final guideline range is plain error because the Government
did not object to this failure in its sentencing memoranda or at
                              34
the sentencing hearing. (Dissenting Op. at 2-6). However, at
the July 8 sentencing hearing the Government argued the
merits of and objected to Fumo‟s proposed departures. It also
made its position clear that the District Court must first
“determine whether there are grounds for departure and, if so,
how many levels up or down . . . thus reaching a final
guideline range” before “then . . . apply[ing] all of the
3553(a) factors, one of which, of course, is the guideline
range that [the Court calculated].” (J.A. 1558) (emphasis
added).

       In light of these arguments, and the District Court‟s
failure to advise the parties that it would not separately
calculate a final guideline range after the completion of step
two, the Government could not have foreseen that the District
Court would fail to determine the extent of the departure
when it pronounced its sentence. As our colleague notes, “the
Government could not have objected because the decision it
claims on appeal to be error had not even been made.”
(Dissenting Op. at 5).

       Under these circumstances, including the lack of an
opportunity to object to the District Court‟s procedures prior
to its pronouncement of sentence, we conclude that the
Government‟s substantive objections to Fumo‟s departure
requests as well as its recitation, to the Court, of the three-step
sentencing process preserve its claim for appellate review.
See United States v. Sevilla, 541 F.3d 226, 230-31 (3d Cir.
2008) (defendant‟s failure to object “at close of sentencing”
to the district court‟s neglect of sentencing procedures related
to the § 3553(a) factors did not require plain error review
because defendant raised the relevance of those factors in its
sentencing memorandum and at the sentencing hearing, so
that he was “not require[d] . . . to re-raise them”).

       Further, even if we agreed with our colleague that the
plain error standard of review applied, we would nevertheless
find that the District Court‟s failure to calculate a final
guidelines range—leaving us unable to review the procedural
and substantive bases of the sentence—is an error that is
                                35
plain, that affects the substantial rights of the parties, and that
could “seriously affect the fairness, integrity or public
reputation of judicial proceedings.” United States v. Vazquez-
Lebron, 582 F.3d 443, 446 (3d Cir. 2009) (internal quotation
omitted); id. at 446-47 (finding plain error where the District
Court “did not accurately follow the second and third steps of
the procedure set out in [United States v. Gunter, 462 F.3d
237, 247 (3d Cir. 2006)],” and thus we could not “know the
District Court‟s intention in sentencing [the defendant]”).

A. Loss calculation

        The parties dispute a number of the calculations that
went into the District Court‟s determination of the loss
attributable to Fumo‟s fraud. Ultimately, the District Court‟s
decisions resulted in a loss calculation for Fumo which fell
just short of $2.5 million, the threshold for increasing the
offense level. “The appropriate standard of review of a
district court‟s decision regarding the interpretation of the
Sentencing Guidelines, including what constitutes „loss,‟ is
plenary. Factual findings, however, are simply reviewed for
clear error.” United States v. Napier, 273 F.3d 276, 278 (3d
Cir. 2001) (internal citation omitted).

1. The Pennsylvania State Senate

a. Overpayment of Senate employees

       Fumo arranged to have a number of Senate employees
under his control classified at higher salary grades than they
were entitled to be based on their duties and qualifications. In
order to calculate the losses attributable to this fraud, the
Government reviewed the human resources manual to
determine the proper classification for each employee based
on testimony about the work they actually performed and then
calculated the loss to the Senate as the difference between the
highest salary each could possibly have been entitled to and
the salary each actually received, for a total of approximately
$1 million. At the sentencing hearing, Fumo did not dispute
the type of work the employees actually performed or the
                                36
salaries that they actually received. Instead, he argued that
the calculations were too speculative because the Chief Clerk
of the Senate could not confirm them and because the Senate
had failed to fire or reclassify these employees after the fact,
implying that the original classifications were somehow
justified. Agreeing with Fumo, the District Court excluded
the Government‟s proposed loss altogether.

       Of course, the Government bears the burden of
establishing, by a preponderance of the evidence, the amount
of loss. United States v. Jimenez, 513 F.3d 62, 86 (3d Cir.
2008).      However, although “the burden of persuasion
remains with the Government, once the Government makes
out a prima facie case of the loss amount, the burden of
production shifts to the defendant to provide evidence that the
Government‟s evidence is incomplete or inaccurate.” Id. In
making a loss calculation, “[t]he court need only make a
reasonable estimate of the loss.” United States v. Ali, 508
F.3d 136, 145 (3d Cir. 2007) (quoting U.S.S.G. § 2B1.1,
Application Note 3(C)).

       Here, the Government made out a prima facie case of
the loss amount, and in response Fumo made only the most
minimal showing of “inaccuracy” in the Government‟s
calculations. In fact, Fumo never really challenges the
substance of the Government‟s calculations, instead relying
on surrounding circumstances to cast speculative doubt on
them. Yet it is not surprising that the Chief Clerk of the
Senate, who had not reviewed in detail the evidence
concerning each employee‟s duties, declined to take a
position on the stand as to the accuracy of the Government‟s
calculations. And the Senate‟s decision not to reclassify
certain of the employees involved could have been prompted
by any manner of reasoning or purposes. Although it is
possible that the Government made errors in the course of its
calculations, there is no reason to think that its figure was not
a “reasonable estimate” of the loss, established by a
preponderance of the evidence. Accordingly, after reviewing
the District Court‟s grounds for rejecting the Government‟s
prima facie showing of the loss amount, we are left with “the
                               37
definite and firm conviction that a mistake has been
committed.” United States v. Grier, 475 F.3d 556, 570 (3d
Cir. 2007) (en banc) (internal quotation omitted). Further,
because the difference in the loss would place Fumo into a
higher offense level, the error was not harmless.

b. Rubin’s “no-work” contract

       The Government next objects to the District Court‟s
decision to exclude from the loss calculation a $150,000, five-
year contract awarded to Arnao‟s husband Rubin, for which
he purportedly performed no services. At the July 8
sentencing hearing, Fumo informed the court that he had
gathered additional evidence demonstrating that Rubin had, in
fact, completed work under the contract. He submitted the
evidence on July 13. The additional material consisted
largely of credit card bills and calendar entries, documenting
that Rubin had met with people, but not what those meetings
had been about. The Government argued that the evidence
submitted by Fumo was weak or irrelevant, and noted that
Fumo‟s current theory that Rubin had worked directly with
Fumo and met with people on his behalf contradicted Rubin‟s
testimony at trial, that the contract was with Rubin‟s
company, B & R Services, for court services. The District
Court declined to rule on the issue of loss from Rubin‟s
contract, stating that “because of the complexity of the Rubin
loss argument in light of the defense submissions, I felt I
could not properly resolve it before sentencing. Rather than
postpone the sentencing, I declined to rule on it.” (Sealed
App. 184-85). This was an abuse of discretion.

       The Federal Rules require a Court to rule on any
disputed matters at sentencing unless “a ruling is unnecessary
. . . because the court will not consider the matter in
sentencing.” Fed. R. Crim. P. 32(i)(3)(B). Fumo argues that,
because the court excluded the $150,000 from its loss
calculation, it did not “consider the matter in sentencing,” and
thus its procedure was acceptable. Yet, if “not considering
[a] matter” under Rule 32(i)(3)(B) can mean refusing to
resolve a matter that is part of the non-discretionary
                              38
calculation of the Guideline base offense level, then a district
court could, for instance, exclude any and all losses, simply
because they are disputed, and, consistent with 32(i)(3)(B),
calculate a loss amount of $0. In fact, the District Court here
effectively did resolve the dispute over the loss from Rubin‟s
contract in favor of Fumo when it treated the loss as $0. It
simply characterized its decision as “declin[ing] to rule on”
the issue and thus requiring no reasoning on its part. A
district court should not refuse to find or calculate a loss
because of the complexity of the dispute or because spending
the time to resolve the dispute might delay sentencing.

        Fumo cites to United States v. Cannistraro, 871 F.2d
1210, 1215 (3d Cir. 1989), for the proposition that the court
may simply refuse to determine whether a loss occurred and
therefore exclude a proposed loss from the calculation.
However, in Cannistraro, although there was a dispute over
the amount of the loss ($400,000 or $3.5 million), the district
court was not engaged in the non-discretionary process of
calculating a Guidelines offense level based on the loss.
Rather, because it was a pre-Guidelines case, id. at 1215 n.4,
the court was exercising its broad discretion in considering
the gravity of the offense as a whole and then arriving at an
overall sentence, Cunningham v. California, 549 U.S. 270,
300 (2007) (noting the “pre-Guidelines federal sentencing
system, under which well-established doctrine barred review
of the exercise of sentencing discretion . . . .”) (internal
quotation omitted). The District Court therefore stated that
“[i]t‟s not necessary for me to make a decision this morning
as to whether it was three and a half million or whether it was
400,000.” Cannistraro, 871 F.2d at 1215. In this case, by
contrast, in order to determine the appropriate offense level
under the Guidelines, and to comply with the three-step
sentencing process under United States v. Booker, 543 U.S.
220 (2005), and its progeny, it was necessary to definitively
resolve the issue of the loss amount from Rubin‟s contract.

       Because the Government concedes that this issue must
be reviewed under the plain error standard, it must show that
the error was plain, that it affected substantial rights, and, if
                               39
not rectified, that it would “seriously affect the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Ward, 626 F.3d 179, 183 (3d Cir. 2010) (internal
citation omitted). The failure to resolve the disputed loss here
meets all three criteria. Under Booker and our three-step
jurisprudence, the error is clear. Further, if the District Court
had found that Rubin‟s contract was a loss of $150,000, it
would have raised the offense level of the defendant,
affecting the public‟s substantial rights. See United States v.
Dickerson, 381 F.3d 251, 260 (3d Cir. 2004) (district court‟s
impermissibly lenient sentence could constitute “plain error”
because “Congress‟s interest in imprisoning certain . . .
offenders is a „right‟ to which the citizenry is entitled”).
Finally, if courts may simply disregard disputed losses on the
grounds that they are “not considering” them, the fairness of
the proceedings may be called seriously into question.
Accordingly, on remand the District Court should carefully
consider the evidence and make a determination as to
whether, and to what extent, Rubin‟s contract resulted in a
loss to the Senate.

2. Citizens Alliance

a. Tools and equipment

       The Government objects to the District Court‟s
calculation of the losses resulting from tools and equipment
purchased by Citizens Alliance but actually used by others,
including Fumo.7 The Government reviewed hundreds,
perhaps thousands, of receipts and credit card statements in
order to assemble a list of tools and equipment bought under
the aegis of Citizens Alliance. It then compared this list

7
  Fumo concedes that there were some “minor” arithmetical
errors in calculating the loss to Citizens Alliance, which
would pin the loss at $1,077,943, rather than the $958,080
calculated by the District Court. He contends, however, that
these errors were insufficient to affect his offense level. They
are, however, sufficient to affect Arnao‟s offense level. See
Section IV.A., infra.
                               40
against the inventory of Citizens Alliance and discussed with
its employees whether it would ever have made any use of
particular items. Finally, it assembled two charts identifying
tools and equipment purchased by Citizens Alliance that it
believed were used for the benefit of Fumo and his aides,
though it conceded that the charts were approximate. Fumo,
in testifying, reviewed the charts and denied having received
roughly $50,000 worth of the approximately $130,000 in
equipment on the charts. The District Court appears to have
credited this assertion and reduced the loss by roughly that
amount. In light of this credibility determination, we cannot
say on this record that the District Court‟s factual finding was
clearly erroneous. We therefore affirm the District Court‟s
reduction in the loss amount attributable to the tools and
equipment.8

b. The Tasker Street property

       The Government sought to assess $574,000 worth of
losses for rental income and unnecessary improvements to the
property on Tasker Street, which Fumo induced Citizens
Alliance to purchase and lavishly furnish, and then used as his
Senate office with little payment from the Senate for rent or
maintenance. The District Court, however, credited against
that figure the fair market value of the property, which
ultimately resulted in a significant credit to Fumo. The
Government appeals that decision and its reasoning, and
argues in the alternative that if Fumo is given credit for the

8
 Judge Garth disagrees that the District Court did not err. He
would hold that the evidence introduced by the Government,
and the exhibits that were put in evidence by the Government,
detailing the cost of tools that were purchased and were used
by Fumo for personal purposes ($93,409.52) should have
been added to the loss calculation in full. The District
Court‟s ruling in this regard eliminated the findings made by
the jury beyond a reasonable doubt and significantly the court
did not issue its own factual findings until after the sentencing
hearings were over. In so doing, the Government was not
able to argue that the Court‟s findings were clearly erroneous.
                               41
fair market value of the building, the District Court should set
against it the costs of acquiring, maintaining, and improving
the building.

       Application Note 3(E)(i) to Section 2B1.1 of the
Guidelines provides that “[l]oss shall be reduced by . . . [t]he
money returned, and the fair market value of the property
returned and the services rendered, by the defendant or other
persons acting jointly with the defendant, to the victim before
the offense was detected.” (emphasis added). The use of the
word “returned” signifies that for a credit to apply, the
defendant must have either returned the very same money or
property, or have provided services that were applied to the
very same money, value, or property that was lost or taken
during the fraud. See also United States v. Radtke, 415 F.3d
826, 842 (8th Cir. 2005) (noting that fringe benefits paid to
defrauded employees by the defendant were “not . . . the sort
of credit against loss contemplated by the guidelines” because
they were “other benefits provided to employee-victims that
do not correlate directly with the amounts withheld from the
third-party administrator as part of the fraud.” (emphasis in
original)).

       Here, the Government argues that the money or value
taken was the maintenance and improvement costs as well as
the rent that Fumo was not charged by Citizens Alliance as
owner of the property. Fumo did not pay or refund any of the
maintenance, improvements, or lost rent himself, which
would have been “money returned” under Application Note
3(E). Nor did he render services related to these loses, such
as assisting with the maintenance or improvements himself.
The Government did not argue that the loss from the fraud
included the funds spent by Citizens Alliance on purchasing
the property. Thus, because neither that property itself nor its
monetary value were ever alleged to have been taken as part
of the fraud in the first place, they could not be “returned” to
Citizens Alliance under Application Note 3(E) and credited
against the losses.

       To explain the error in the District Court‟s ruling in a
                              42
less technical way, the maintenance, improvements, and
rental income the Government identified as losses were
conceptually independent and collateral to any value received
because of the purchase of the building. They would have
been costs even if Citizens Alliance had owned the building
beforehand, or even if it had been a lessee rather than owner,
who subleased the space to Fumo. Fumo essentially seeks to
set the value of an independent “good” he purportedly
secured for Citizens Alliance against the costs his frauds
inflicted on it.9 He offers no cases in support of this theory of
loss calculation, which is unsurprising, as it would allow, for
instance, an officer of a corporation who embezzled from his
employer to claim credits against the loss caused by the
embezzlement for overall increases in the company‟s assets
under his watch. Accordingly, we conclude that the District
Court‟s decision to credit the value of the Tasker Street
property against the losses resulting from Citizen Alliance‟s
lost rent, improvements, and maintenance costs was an abuse
of discretion.

c. The Gazela painting

        Fumo induced Citizens Alliance to commission a
painting of the Gazela, a historic ship, from a local painter for
$150,000. As the Government‟s investigation and media
reports surfaced, Fumo directed Citizens Alliance to donate
the painting to the ISM, rather than retain it in his office. The
Government argues that this entire amount should count as
loss, because the painting was otherwise unwanted and it and
its prints are now in storage. The District Court credited the
testimony of an appraiser as to the value of the painting and

9
  Further, even if it were appropriate to grant a credit for the
fair market value of the building, it would be necessary to set
off the costs associated with the purchase and maintenance of
the building. Obviously, any gain experienced by Citizens
Alliance due to the value of the building can only be
calculated after subtracting what it paid to acquire the
building in the first place.

                               43
the prints and the Government does not appear to have
offered a competing formal appraisal. Accordingly, the
District Court‟s factual finding is entitled to significant
deference, and we will not disturb it.10

B. Sentencing enhancements

       The Government objects to the District Court‟s refusal
to impose a 2-level enhancement on Fumo for acting on
behalf of a charitable organization and a 2-level enhancement
for use of sophisticated means. “We review a district court‟s
application of sentencing enhancements for abuse of
discretion.” United States v. Robinson, 603 F.3d 230, 233 (3d
Cir. 2010).

1. Acting on behalf of a charitable organization

       The Government argues that the District Court erred in
failing to apply a 2-level enhancement for Fumo‟s
misrepresentation that he was acting on behalf of Citizens
Alliance, a charitable organization.           The Sentencing
Guidelines state: “If the offense involved (A) a
misrepresentation that the defendant was acting on behalf of a
charitable, educational, religious, or political organization, or
a government agency . . . increase by 2 levels.” U.S.S.G. §
2B1.1(b)(8)(A). The application notes make it clear that this
guideline applies where an individual purports to be raising
funds for a charity while intending to divert some or all the
funds for another purpose.

               Subsection (b)(8)(A) applies in any case
       in which the defendant represented that the
       defendant was acting to obtain a benefit on
       behalf of a charitable educational, religious, or
       political organization, or a government agency

10
  Judge Garth disagrees that the District Court did not err.
He would hold that the cost of the Gazela painting
($150,000), and the prints should be included in the loss
calculation.
                               44
      (regardless of whether the defendant actually
      was associated with the organization or
      government agency) when, in fact, the
      defendant intended to divert all or part of that
      benefit (e.g., for the defendant's personal gain).
      Subsection (b)(8)(A) applies, for example, to
      the following:

              ....

             (iii) A defendant, chief of a local fire
      department, who conducted a public fundraiser
      representing that the purpose of the fundraiser
      was to procure sufficient funds for a new fire
      engine when, in fact, the defendant intended to
      divert some of the funds for the defendant's
      personal benefit.

U.S.S.G. § 2B1.1, Application Note 7(B). The Government
contends that Fumo‟s behavior fits squarely into this
guideline because Fumo acquired funds from PECO for
Citizens Alliance while intending to divert those funds for his
own use. Fumo argued and the District Court agreed that the
Government had not shown Fumo‟s intent to divert the funds
at the time he obtained them from PECO. However, the
Government points out that Fumo acquired a substantial
portion—$10 million—of the PECO funds in 2002, well after
he began using Citizens Alliance‟s funds for his own personal
political benefits. Indeed, it strains all credulity to believe
that Fumo repeatedly used Citizens Alliance funds for
personal and political purposes, then withdrew his intent to do
so at the time he obtained the $10 million from PECO, then
regained that intent shortly thereafter as he continued to use
Citizens Alliance funds for his own benefit. This evidence of
Fumo‟s intent to divert the funds was overwhelming, and the
District Court‟s refusal to apply a 2-level enhancement was
an abuse of discretion.

2. Use of sophisticated means

                              45
       The Government next argues that the District Court
erred in not applying a 2-level enhancement for the use of
sophisticated means. The Sentencing Guidelines state: “If . . .
(C) the offense otherwise involved sophisticated means,
increase by 2 levels.” U.S.S.G. § 2B1.1(b)(9)(C). As the
explanatory note 8(B) amplifies, “„[s]ophisticated means‟
means especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an
offense. . . . Conduct such as hiding assets or transactions, or
both, through the use of fictitious entities, corporate shells, or
offshore financial accounts also ordinarily indicates
sophisticated means.” U.S.S.G. § 2B1.1, Application Note
8(B) (emphasis added). “Application of the adjustment is
proper when the conduct shows a greater level of planning or
concealment than a typical fraud of its kind.” United States v.
Landwer, 640 F.3d 769, 771 (7th Cir. 2011) (internal
quotation omitted); see also United States v. Frank, 354 F.3d
910, 928 (8th Cir. 2004) (enhancement appropriate where
defendants “use[d] other individuals and businesses to
conduct business on [a defendant‟s] behalf,” as well as a
“shell entity”); United States v. Cianci, 154 F.3d 106, 110 (3d
Cir. 1998) (finding “sophisticated means” enhancement
appropriate where defendant‟s crime “involved the use of a
shell corporation [and] falsified documents”).

       Here, the District Court rejected the Government‟s
request for a sophisticated means enhancement for the
“reasons substantially based upon defense arguments.”
(Sealed App. 184). Fumo had argued that the conduct here
was not “especially complex or intricate, relative to other
federal criminal fraud cases” under U.S.S.G. §
2B1.1(b)(9)(C). (J.A. 715) (emphasis in original). Yet Fumo
induced Citizens Alliance to form for-profit subsidiaries in
order to permit purchases on his behalf without the
disclosures required for such entities. According to the
evidence, these subsidiaries did no business of their own, and
at least some of their directors were “recruited” by being
asked to sign documents the significance of which they did
not understand. These subsidiaries leased cars for Fumo and
paid at least one political consultant for work on a campaign
                               46
Fumo had a political interest in. In its memorandum and
order denying Fumo‟s post-trial motion for acquittal, the
District Court itself characterized the entities as:

      nothing more than sham corporations designed
      to hide the activities of Citizens Alliance that
      were not in conformity with its status as a
      501(c)(3) corporation, such as the purchase of
      the cars for the personal use of Fumo and his
      staff. In a March 23, 2000 memorandum from
      Arnao to Fumo, Arnao revealed that the two
      were working in close conjunction to create
      these sham corporations, with false corporate
      addresses and purely titular officers.

(J.A. 507). The use of these sham entities, which were
created to conceal the flow of funds to Fumo and his
associates, strongly resembles the conduct described in
Application Note 8(B) as well as conduct that this Court and
others have found to fall within the sophisticated means
guideline. Here too, we conclude that the District Court
abused its discretion in refusing to apply the enhancement.

C. Calculation of the final guidelines range

       The Government next argues that the District Court
made a fundamental procedural error in the second step of the
sentencing process when, after granting Fumo a departure
based upon his extraordinary public works, it did not
calculate a new, final guidelines range. As we have
repeatedly made clear “[c]ourts must continue to calculate a
defendant‟s Guidelines sentence precisely as they would have
before Booker[;] [i]n doing so, they must formally rule on the
motions of both parties and state on the record whether they
are granting a departure and how that departure affects the
Guidelines calculation.” Gunter, 462 F.3d at 247 (emphasis
added) (internal quotations and citations omitted); see also
United States v. Lofink, 564 F.3d 232, 238 (3d Cir. 2009).

      Fumo initially sought a departure based on his health
                             47
and his “good works” (i.e., his public service). The District
Court ultimately awarded him a significant reduction from the
guidelines sentencing range of 121 to 151 months that it had
calculated at step one. Whether this reduction was ultimately
a departure under the Guidelines or a variance under §
3553(a) is itself a contested issue discussed in more detail
below. However, at the time the sentence was announced in
the courtroom, it appeared that it was a departure. At the July
14 final sentencing hearing, the Court stated: “I have
considered what the guidelines have said here and I did make
a finding as to what the guidelines are, but I‟ve also added a
finding that I‟m going to depart from them.” (J.A. 1623).
Nevertheless, the District Court never actually stated what
that departure was in terms of the guidelines range; a fact the
parties noticed.

       In his post-sentencing Rule 35(a) motion, seeking to
have the Court deem its sentence a variance instead of a
departure, Fumo noted that “[w]hen a sentencing court grants
a true „departure‟ [as opposed to a variance,] it must state
how the departure affects the Guidelines calculation. This
Court[] fail[ed] to make such a statement . . . .” (J.A. 1629)
(emphasis added) (internal quotation omitted).           While
opposing that motion, the Government noted that the court
had initially established a “baseline” (i.e., before the
resolution of the motion for a departure based on good works)
offense level of 33—although later changed to 32—but
carefully took no position on whether the court had ever
announced a final guideline offense level.

       In ruling on the Rule 35(a) motion, the Court held:
“The government correctly states that the court announced it
was granting a departure. Thereafter, the court never
announced the guideline level to which it departed, and, in
fact, never reached the sentence it did by consulting any
specific level on the guideline chart.” (J.A. 1653). Then, in
an amendment to the judgment accompanying its ruling, the
court stated, “I never announced nor have I ever determined
to what guideline level I had departed.” (Sealed App. 185-
86).
                              48
        Fumo attempts to argue that the Court adequately
completed step two simply by sentencing Fumo to the
sentence it did—i.e., that reducing Fumo‟s sentence by a
certain number of months implies what the degree of the
departure was. However, the only case that Fumo cites to for
the proposition that announcing a departure in terms of
months rather than in terms of offense levels and guidelines
ranges is United States v. Torres, 251 F.3d 138 (3d Cir.
2001), a pre-Booker case. Such an approach would make
little sense under the post-Booker sentencing procedure
described in Gall. Offense levels, cross-referenced with the
criminal history of the defendant, now result in a
recommended range of months incarceration, and the court
must then exercise its discretion under § 3553(a) to determine
where—whether inside or outside of that range—the sentence
should fall. If after step one the court simply decides on a
final sentence without separately completing the second (i.e.,
departures that change the Guidelines range) and third steps
(i.e., variances that determine the final sentence), it becomes
impossible for an appellate court to reconstruct its logic and
reasoning, and therefore to review the sentence. As we note
below, this is no idle worry and precisely what occurred here.

       As a result, to the extent the District Court‟s
sentencing reduction was a departure rather than a variance
under § 3553(a), it erred by failing to calculate a final
guideline offense level and guidelines sentencing range.

D. Articulation of the basis for the below-guidelines
   sentence related to public service

       The Government argues that the District Court further
erred by failing to clearly articulate whether it was granting
Fumo a departure or a variance, and that this error requires
remand. There are “two types of sentence that diverge from
the original Guidelines range . . . . A traditional sentencing
„departure‟ diverges . . . from the originally calculated range
„for reasons contemplated by the Guidelines themselves.‟ In
contrast, a „variance‟ diverges . . . from the Guidelines,
                              49
including any departures, based on an exercise of the court‟s
discretion under § 3553(a).” United States v. Floyd, 499 F.3d
308, 311 (3d Cir. 2007) (internal citations omitted). This
distinction is more than mere formality. “Although a
departure or a variance could, in the end, lead to the same
outcome . . . it is important for sentencing courts to
distinguish between the two, as departures are subject to
different requirements than variances.” Id. “[D]istrict courts
should be careful to articulate whether a sentence is a
departure or a variance from an advisory Guidelines range.”
United States v. Vampire Nation, 451 F.3d 189, 198 (3d Cir.
2006).

        When a district court‟s sentencing decision “leaves us
unable to determine whether the court intended to grant [a] . .
. departure or a variance,” the court has not, as it must,
“adequately explain[ed] the chosen sentence.” United States
v. Brown, 578 F.3d 221, 226 (3d Cir. 2009) (internal
quotation omitted). Under such circumstances, “we will
remand for resentencing unless we conclude on the record as
a whole . . . that the error did not affect the district court‟s
selection of the sentence imposed.” Id. (internal quotation
omitted). Therefore, the Government must establish first, that
it is impossible to determine with confidence from the record
whether the District Court granted a departure or a variance
based on Fumo‟s good works; and second, that the error
affected the District Court‟s selection of its sentence.

       Before the July 8 hearing, Fumo moved for a departure
based on both good works and ill health. In its July 9 ruling,
the District Court denied the request for a departure based on
ill health, but stated that “a decision on a departure based
upon good works will be reserved until . . . July 14, 2009.”
(J.A. 1566). At the July 14 hearing, the Court initially noted
that “I did not deny with regards to the good works.” (J.A.
1568). Later on in the hearing, the court announced, “You
worked hard for the public . . . and I‟m therefore going to
grant a departure from the guidelines.” (J.A. 1622). Finally,
the court stated, “I did make a finding as to what the
guidelines are, but I‟ve also added a finding that I‟m going to
                              50
depart from them.” (J.A. 1623).

       Shortly after the hearing, in response to Fumo‟s Rule
35(a) motion to “correct” the sentence to establish that the
sentencing reduction was a variance rather than a departure,
the District Court issued an order stating that “[t]he
government correctly states that the court announced it was
granting a departure. Thereafter, the court never enunciated
the guideline level to which it departed, and, in fact, never
reached the sentence it did by consulting any specific level on
the guideline chart.” (J.A. 1653). The District Court then
attached an amendment to the judgment, which included the
following passage:

             I next determined whether there should
      be a departure from the guidelines and
      announced at the sentencing hearing that there
      should be based on my finding extraordinary
      good works by the defendant. I did not
      announce what specific guideline level the
      offense fell into; that is to say, the precise
      number of levels by which I intended to depart
      because until I considered all other sentencing
      factors, I could not determine in precise months
      the extent that I would vary from the guidelines.

             Having advised counsel of the offense
      level that I found and my intent to depart
      downward, I then proceeded to hear from
      counsel their respective analyses of what an
      appropriate sentence should be.

             The procedure I followed was perhaps
      more akin to that associated with a variance
      than a downward departure because I never
      announced nor have I ever determined to what
      guideline level I had departed. Ultimately, the
      argument over which it was elevates form over
      substance.

                              51
(Sealed App. 185-86) (emphasis added).            Without the
amendment to the judgment, we might have been satisfied
that the Court was departing rather than varying. However,
the statement in that document that “[t]he procedure I
followed was perhaps more akin to that associated with a
variance than a downward departure” indicates that the
District Court itself was not certain whether it was departing
or varying.

        This conclusion is reinforced by the District Court‟s
earlier statement in the same filing that “I did not announce
what specific guideline level the offense fell into; that is . . .
the precise number of levels by which I intended to depart
because until I considered all other sentencing factors, I could
not determine in precise months the extent that I would vary
from the guidelines.” (Sealed App. 186). This language uses
“depart” and “vary” interchangeably and admits that the
Court conflated and combined the second and third steps of
the sentencing process. The District Court did not need to
“consider . . . all other sentencing factors” under § 3553(a)
before departing to a different guideline level, nor was it
appropriate to do so.

        We have previously responded to the District Court‟s
criticism that the distinction between departures and variances
“elevates form over substance” by noting that “in the
sentencing context, it is firmly established that form—i.e.
procedure—and substance are both of high importance.”
Wright, 642 F.3d at 154. “We have a responsibility „to ensure
that a substantively reasonable sentence has been imposed in
a procedurally fair way.‟” Id. (emphasis added) (quoting
United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008)).
Moreover, the difference here may be more than a mere
formality, given the different scrutiny and standards of review
we apply to departures as opposed to variances. In particular,
our precedent places certain limitations on courts‟ abilities to
depart based on good works in the case of public officials.
United States v. Serafini, 233 F.3d 758, 773 (3d Cir. 2000)
(holding that “if a public servant performs civic and
charitable work as part of his daily functions, these should not
                               52
be considered in his sentencing because we expect such work
from our public servants” but that “assistance, in time and
money, to individuals and local organizations” that would not
ordinarily be part of a defendant‟s work as a public servant
may properly be considered). While we need not decide
whether a departure based on good works could be applied
here, it is undeniable that a district court has more discretion
in imposing a variance, where the substance of the sentence is
only subject to substantive reasonableness review.

        Because of the substantial uncertainty regarding
whether the District Court‟s reduction was a departure or
variance, and because that distinction could very well have
practical effects on Fumo‟s ultimate sentence, we cannot
conclusively say based on the record as a whole that “the
error did not affect the district court‟s selection of the
sentence imposed.” Brown, 578 F.3d at 226. Accordingly,
on remand the District Court should take care to first address
any departures, and if departures are granted, to then calculate
a final guidelines range. Taking this final guidelines range as
advisory, it should only then consider the sentencing factors
included in 18 U.S.C. § 3553(a), decide whether to vary from
the guidelines, and determine the appropriate sentence.

E. Consideration of the Government’s arguments for an
   upward variance

       After learning that the Court proposed to depart
downwards, the Government moved for an upward variance,
arguing that the proposed sentence did not adequately
represent or take into account the full loss from the fraud, the
damage to public institutions, Fumo‟s perjury at trial, other
obstructive conduct, and Fumo‟s alleged lack of remorse.
The District Court did not vary upwards on any of these
bases. At the hearing, the Government also raised the
disparity between the sentence imposed on Fumo and other
sentences imposed for fraud involving public and charitable
funds, as well the disparity between Fumo‟s sentence and



                              53
those imposed on his accomplices in the scheme.11

       In setting forth how a court should respond to a party‟s
request for a variance, the Supreme Court has held that “[t]he
sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties‟ arguments
and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S.
338, 356 (2007). “[T]he court must acknowledge and
respond to any properly presented sentencing argument which
has colorable legal merit and a factual basis.” United States v.
Ausburn, 502 F.3d 313, 329 (3d Cir. 2007). Nevertheless, we
need not address this argument now, in light of the fact that
some or many of the Government‟s arguments may become
moot after the District Court recalculates the guideline range
and rules on the parties‟ motions for departures. On remand,
the District Court should consider any colorable arguments
for a variance that have a basis in fact, whether made by
Fumo or the Government.

F. Prejudgment interest on the order of restitution

       Finally, Fumo also challenges one aspect of his
sentence, raising two arguments for why prejudgment interest
on the restitution awarded was an abuse of discretion.

       First, although we previously affirmed an award of
prejudgment interest on a restitution award in Gov’t of Virgin
Islands v. Davis, 43 F.3d 41, 47 (3d Cir. 1994), Fumo argues
that Davis has been overturned sub silentio by our decision in
United States v. Leahy, 438 F.3d 328, 333-35 (3d Cir. 2006)

11
  In particular, John Carter, the former President of the ISM,
was sentenced to a term of 15 years‟ imprisonment.
Computer technician Leonard Luchko, who was only
involved with the obstruction of justice portion of the case,
received a sentence of 30 months‟ imprisonment. Computer
technician Mark Eister, who cooperated with the
Government, received a 5K1.1 departure and was sentenced
to probation.
                              54
(en banc). In Davis, we noted that as a general matter, it is
“well established that criminal penalties do not bear interest.”
43 F.3d at 47 (internal citations omitted). However, we also
held that the inclusion of prejudgment interest on restitution
under the Victim and Witness Protection Act (“VWPA”), as
amended by the Mandatory Victims Restitution Act
(“MVRA”), 18 U.S.C. § 3663(b)(1), was proper because the
“restitution ordered . . . is compensatory rather than punitive”
and the “[VWPA] [a]wards are designed to compensate
victims for their losses, rather than to serve retributive or
deterrent purposes.” 43 F.3d at 47 (internal citation omitted).
Given that the restitution ordered here was awarded under the
VWPA, it would seem that prejudgment interest is
appropriate under Davis.

        Fumo argues that in Leahy, which determined whether
United States v. Booker applied to orders of restitution, we
concluded “that restitution ordered as part of a criminal
sentence is criminal rather than civil in nature” and expressly
agreed with three other circuits who we characterized as
holding “that restitution, when ordered in connection with a
criminal conviction, is a criminal penalty.” 438 F.3d at 334-
35. Thus, Fumo argues, because restitution is a “criminal
penalty,” under Davis‟s own terms prejudgment interest
should be unavailable. The underlying tension is that
restitution, unlike a criminal fine on the one hand, or
compensatory damages, on the other, serves both punitive
purposes and compensatory ones. Indeed, in Leahy we
framed our analysis by noting “that restitution combines
features of both criminal and civil penalties, as it is, on the
one hand, a restoration to the victim by defendant of ill-gotten
gains, while it is, at the same time, an aspect of a criminal
sentence.” 438 F.3d at 333. The question then arises, which
dictate should courts follow: that a criminal penalty should
not bear interest, Rodgers v. United States, 332 U.S. 371, 374
(1947), or that a victim who has suffered actual money
damages at the hands of a defendant should be fairly
compensated for the loss, id. at 373, in situations where both
principles are applicable.

                              55
       In Rodgers, a cotton farmer produced and sold more
cotton than his quota permitted under the Agricultural
Adjustment Act of 1938, and the United States sued to
recover “money „penalties‟” that the Act made the farmer
subject to. Id. at 372. The District Court awarded interest on
the approximately $7,000 from the dates the penalties became
due to the date of judgment. The Sixth Circuit affirmed, and
the Supreme Court reversed. The Supreme Court first
affirmed the general rule that “the failure to mention interest
in statutes which create obligations has not been interpreted
by this Court as manifesting an unequivocal congressional
purpose that the obligation shall not bear interest.” Id. at 373.
In this particular case, however, the Court analogized the
penalties to criminal penalties, and noted:

       [t]he contention is hardly supportable that the
       Federal Government suffers money damages or
       loss in the common law sense, to be
       compensated for by interest, when one
       convicted of a crime fails promptly to pay a
       money fine assessed against him.             The
       underlying theory of that penalty is that it is a
       punishment or deterrent and not a revenue-
       raising device; unlike a tax, it does not rest on
       the basic necessity of the Government to collect
       a carefully estimated sum of money by a
       particular date in order to meet its anticipated
       expenditures.

Id. at 374. According to Rodgers then, it is the absence of
“money damages or loss . . . to be compensated for” and the
lack of authority for “revenue-raising” that makes
prejudgment interest inapplicable to criminal penalties.

       Yet in the context of restitution under the VWPA,
there are money damages and losses to be compensated.
Further, as courts have widely agreed, there is authority to
seek “carefully estimated sum[s] of money”, id., for victims
under the VWPA, as its “purpose . . . is to ensure that
wrongdoers, to the degree possible, make their victims
                               56
whole.” United States v. Rochester, 898 F.2d 971, 983 (5th
Cir. 1990) (quoting United States v. Hughey, 877 F.2d 1256,
1261 (5th Cir. 1989) (collecting cases), rev’d on other
grounds, 494 U.S. 411 (1990)). And in order to make a
victim whole, prejudgment interest may be necessary to
“allow an injured party to recoup the time-value of his loss.”
William A. Graham Co. v. Haughey, --- F.3d ---, 2011 WL
1833238, at *5 (3d Cir. May 16, 2011). Other circuits have
reached the same conclusion that we reached in Davis,
finding that prejudgment interest is available on orders of
restitution under the VWPA and MVRA. See United States v.
Qurashi, 634 F.3d 699, 704 (2d Cir. 2011); United States v.
Huff, 609 F.3d 1240, 1247 n.4 (11th Cir. 2010); United States
v. Hoyle, 33 F.3d 415, 420 (4th Cir. 1994); United States v.
Patty, 992 F.2d 1045, 1049-50 (10th Cir. 1993); United States
v. Simpson, 8 F.3d 546, 552 (7th Cir. 1993); United States v.
Smith, 944 F.2d 618, 626 (9th Cir. 1991); Rochester, 898 F.2d
at 982-83.

        Moreover, in Leahy, our characterization of restitution
as a criminal penalty came in the context of whether it was
the type of award to which the Sixth Amendment right to a
jury trial applied. For purposes of our Sixth Amendment
analysis in Leahy, it was constitutionally irrelevant whether
restitution under the VWPA also has an important, and
indeed primary purpose of compensating victims. While
Leahy shows that restitution under the VWPA has a punitive
component that makes it a criminal penalty in the eyes of the
Sixth Amendment, that does not modify our ruling in Davis
that such restitution also serves an important compensatory
purpose under the VWPA, which permits courts to award
prejudgment interest in order to recoup the time-value of the
victim‟s loss. Accordingly, we reaffirm our holding in Davis
that prejudgment interest is available for orders of restitution
under the VWPA and MVRA.

       Fumo also argues that the Government, when it
obtained prejudgment interest on the restitution after the date
of sentencing, did not give the proper 10 days‟ notice that it
would need more time to ascertain the amount of loss under
                              57
18 U.S.C. § 3664(d)(5). Section 3664(d)(5) reads:

              If the victim‟s losses are not
       ascertainable by the date that is 10 days prior to
       sentencing, the attorney for the Government or
       the probation officer shall so inform the court,
       and the court shall set a date for the final
       determination of the victim‟s losses, not to
       exceed 90 days after sentencing.

        On its face this language does seem to suggest that the
Government should provide prejudgment interest calculations
before sentencing or give 10 days‟ notice that it will need
more time to make and present such calculations. However,
the Fourth Circuit, in United States v. Johnson, 400 F.3d 187,
199 (4th Cir. 2005), noted that other circuits have concluded,
based on the statute‟s purpose in protecting victims, that the
90-day “deadline” for determining the victim‟s losses does
not bar a court from ordering restitution even after 90 days as
long as there is no substantial prejudice to the defendant.
This holding has since been affirmed by the Supreme Court.
Dolan v. United States, 130 S. Ct. 2533, 2539 (2010) (a
court‟s failure to meet the statute‟s 90-day deadline for
restitution, “even through its own fault or that of the
Government, does not deprive the court of the power to order
restitution”). Johnson also held, in light of the treatment of
the 90-day deadline, that the 10-day deadline for the
Government to provide notice of the need to further ascertain
the victim‟s loss was similarly no bar to the Court postponing
or modifying restitution. 400 F.3d at 199. We agree with
Johnson and see no reason to distinguish between the 10-day
deadline at issue here and the 90-day deadline in the same
provision that the Supreme Court in Dolan held creates a non-
enforceable deadline for district courts. We will therefore
affirm the order of restitution, including prejudgment interest.

                              IV.

                Appeal of Arnao’s sentence

                              58
A. Loss calculation

       The Government argues that, as it did for Fumo, the
District Court erred in calculating the loss that Arnao‟s fraud
caused to Citizens Alliance.

        Arnao joins in Fumo‟s arguments with respect to the
Citizens Alliance fraud, which is the only portion of Fumo‟s
fraudulent conduct in which she is implicated. The District
Court‟s calculations of those losses and our review of them
affect her sentence as well. Arnao agrees with Fumo‟s
analysis of the Citizens Alliance loss, which calculated the
loss at $1,077,943, rather than the $958,080 calculated by the
District Court. In addition, as explained above, the District
Court abused its discretion in crediting the value of the
Tasker Street property against the losses from maintenance,
improvements, and foregone rent.          The approximately
$574,000 loss from that portion of the Citizens Alliance fraud
is also attributable to Arnao.        Because these revised
calculations create a loss that is greater than $1,000,000,
Arnao will receive a 2-level increase in her base offense level
under § 2B1.1(b)(I). Accordingly, these errors were not
harmless as to Arnao and her sentence must be vacated and
remanded.

B. Procedural reasonableness of the downward variance

       Although we vacate and remand Arnao‟s sentence for
consideration of the proper loss amount from the fraud, we
also address the Government‟s argument that we should
vacate Arnao‟s sentence because the District Court failed to
adequately explain its reasons for granting Arnao a
substantial downward variance from the advisory guideline
range. With regard to whether a court‟s explanation of a
sentence demonstrates that it meaningfully considered the §
3553(a) factors, we have stated that “[b]ecause of the fact-
bound nature of each sentencing decision, there is no uniform
threshold for determining whether a court has supplied
sufficient explanation for its sentence.” United States v.
Merced, 603 F.3d 203, 215 (3d Cir. 2010) (internal quotation
                              59
omitted). For some cases, a brief statement will be sufficient,
while for others a more extensive explanation of the court‟s
reasoning may be needed. Id. However, the greater the
magnitude of a court‟s variance, the greater the burden on the
district court to describe its reasoning. Id. at 216.

        Here, despite the Government‟s claims to the contrary,
the District Court did consider the relevant statutory factors
and the arguments presented to it at sentencing. For the most
part, the Government‟s true concern with the sentence
appears to be that the District Court did not agree with it on
the substance.        In its initial brief, for instance, the
Government argues that the variance was erroneous because
it relied primarily on Arnao's difficult childhood. This is a
substantive criticism, not a procedural one. Later, in its reply
brief, the Government admits that the District Court also
considered Arnao's charitable good works, but contends that
these good deeds cannot support a large variance. This,
again, is a substantive criticism, not a procedural one. See,
e.g., id. at 217 (rejecting Government‟s argument, which was
framed as procedural, that the district court did not adequately
consider defendant‟s criminal history or the seriousness of the
offense because it “is a substantive complaint, not a
procedural one” ).

       To the extent its argument is based on alleged
procedural deficiencies, the Government appears to argue that
the District Court had a duty to address every single
permutation of its arguments, counter-arguments and replies.
But we have never required such pinpoint precision in
addressing statutory sentencing arguments, and have
emphasized that review “is necessarily flexible.” Id. at 215
(quoting Ausburn, 502 F.3d at 328). The Government cites
three examples of sentences that we have overturned on
grounds of procedural unreasonableness: Id. at 217-20,
United States v. Lychock, 578 F.3d 214, 219 (3d Cir. 2009),
and Levinson, 543 F.3d at 199-200. However, each of these
involved a sentencing court that varied from the Guidelines
because of a policy disagreement under Kimbrough v. United
States, 552 U.S. 85 (2007), but without sufficiently
                              60
explaining the reasoning behind that policy disagreement.

       In this case, it is true that there was some hint of the
District Court‟s disagreement with the way the Guidelines
treat corruption cases. Nevertheless, the District Court did
not suggest that this was an actual basis for its variance.
Rather, its decision to vary appears to have been based upon
the considerations of the statutory § 3553(a) factors. In sum,
we find that the District Court‟s explanation of the variance is
sufficiently thorough to demonstrate that it fully considered
the Government‟s arguments and the various statutory
factors. It was also specific and reasoned enough to permit us
to exercise meaningful appellate review. Accordingly, we
find no abuse of discretion in the Court‟s downward
variance.12


12
   Judge Garth disagrees with this conclusion and would hold
that the District Court abused its discretion in granting the
large downward variance it granted to Arnao. A “major
variance from the Guidelines requires a more significant
justification than a minor one.” United States v. Grober, 624
F.3d 592, 599 (3d Cir. 2010). In this case, the District Court
imposed a sentence of only 12 months and one day, based on
a calculated guideline range of 70-87 months. Other than its
conclusory statement that Arnao‟s challenges were “unusual
from the usual challenge” and its nod to the fact that she “did
something in [her] lifetime to help other people, to help other
charities,” the District Court provided little explanation for
the sizeable downward variance it granted.

       The District Court additionally failed to address, much
less give meaningful consideration to, several of the
Government‟s arguments—for example regarding Arnao‟s
egregious obstruction efforts and the reputational harm to
Citizens Alliance. Finally, the District Court provided an
inadequate explanation in regards to considering unwarranted
disparities under § 3553(a)(6). “[A] district court‟s failure to
analyze § 3553(a)(6) may constitute reversible procedural
error, even where . . . the court engages in thorough and
                              61
                              V.

      For the foregoing reasons, we affirm Fumo‟s
conviction, vacate the sentences of both Fumo and Arnao, and
remand for further proceedings not inconsistent with this
opinion.




thoughtful analysis of several other sentencing factors.”
Merced, 603 F.3d at 224.

       A sentence may be procedurally improper where it is
“imposed without considering the risk of creating
unwarranted disparities and the sentence in fact creates such a
risk,” especially where, as here, “the sentence falls outside of
the Guidelines, or where . . . a party specifically raises a
concern about disparities with the district court and that
argument is ignored.” Id. The District Court in this case
largely ignored the Government‟s disparity arguments, and
instead concluded, without explanation, that the guideline
sentence would “result in a tremendous disparity.”

        Under these circumstances, Judge Garth would hold
that the District Court failed to meet its burden of providing a
sufficient explanation for Arnao‟s variance. See id., 603 F.3d
at 216. Therefore, the variance ordered by the District Court
was an abuse of discretion.
                              62
United States of America v. Vincent J. Fumo,
Nos. 09-3388 & 09-3389
United States of America v. Ruth Arnao, No. 09-3390

NYGAARD, J., concurring in part and dissenting in part.

        I agree with the majority and join them in affirming
Fumo and Arnao‘s convictions. I do, however, have two
specific points of disagreement that cause me to dissent.
First, the majority today vacates the sentencing decision of an
experienced District Court judge because they claim, inter
alia, he failed to recalculate the advisory Guidelines range
after granting Fumo a downward departure. Without such a
recalculation, the majority contends that it cannot reconstruct
the District Court‘s logic and reasoning and, therefore, finds it
impossible to review the sentence. Although I question
whether such a recalculation is even necessary, my reading of
the record reveals that the District Judge did indeed
recalculate the advisory Guidelines range after granting the
downward departure.1        Second, I believe the majority
employs an incorrect standard to review this issue.

1
  My dissenting opinion will be confined to my disagreement
with their finding of procedural error as to the District Court‘s
departure ruling and Guidelines calculation. I also dissent
from those portions of the majority opinion that find the
District Court‘s classification of loss to be an abuse of
discretion. I further disagree with the majority and cannot
find the District Court‘s refusal to apply sentencing
enhancements for acting on behalf of a charity (U.S.S.G. §
2B1.1(b)(8)(A)) and for the use of sophisticated means
(U.S.S.G. § 2B1.1(b)(9)(C)) to be an abuse of discretion.
Because I dissent from the majority‘s resolution of the loss




                               1
                               I.

                              A.

        Quoting our opinion in United States v. Tomko, the
majority states that ―[t]he abuse-of-discretion standard applies
to both our procedural and substantive reasonableness
inquiries.‖ 562 F.3d 558, 567 (3d Cir. 2009) (en banc) (citing
Gall v. United States, 552 U.S. 38, 51 (2007)). That is a
correct statement, as far as it goes. What the majority misses,
however, is that ―[o]ur standard of review differs based on
whether the alleged sentencing error was raised below. If so,
we review for abuse of discretion; if not, we review for plain
error.‖ United States v. Russell, 564 F.3d 200, 203 (3d Cir.
2009); see also United States v. Vazquez–Lebron, 582 F.3d
443, 445 (3d Cir. 2009) (holding that failure to raise
procedural error before the district court resulted in plain
error review); United States v. Watson, 482 F.3d 269, 274 (3d
Cir. 2007) (―[b]ecause [the defendant] did not object to this
sentence on this ground during the sentencing hearing, we
review the District Court's judgment for plain error.‖).
Indeed, there was no question in Tomko that the appellant
preserved its challenge to the issue under review: ―[a]t the
sentencing proceeding, the Government exhaustively


calculation issues, I dissent from that portion of the majority
opinion that vacates Arnao‘s sentence as well. I join Judge
Fuentes, however, in finding no abuse of discretion in the
District Court‘s loss calculations concerning the tools and
equipment purchased by Citizen‘s Alliance (Maj. Op. at 39)
and the painting of the sailing vessel, Gazela (Maj. Op. at 42).
Finally, I join Judge Fuentes, and find no abuse of discretion
with the District Court‘s grant of variances to Arnao.




                               2
asserted, directly in front of the District Court, that a
probationary sentence would adversely affect general
deterrence.‖ 562 F.3d at 568.

       Even though the majority acknowledges that the
Government ―carefully took no position on whether the court
had even announced a final guideline offense level,‖ it
incorrectly defaults to the ―abuse of discretion‖ standard of
review. Maj. Op. at 47. Review for ―plain error‖ is, instead,
the appropriate standard of review because, despite ample
opportunity to do so, the Government did not object to the
District Court‘s failure to perform a post-departure sentencing
recalculation.

       Our authority to remedy an improperly preserved error
is strictly circumscribed.2     Federal Rule of Criminal
Procedure 52(b), as well as recent Supreme Court precedent,
sets forth the proper standard of review applicable to
unpreserved procedural sentencing errors: when a party does
not preserve an argument in the district court, we review only
for plain error. Rule 52(b) provides that, in the absence of
proper preservation, plain-error review applies.           See

2
  As the Supreme Court has noted, there is good reason our
review is circumscribed: ―anyone familiar with the work of
courts understands that errors are a constant in the trial
process, that most do not much matter, and that a reflexive
inclination by appellate courts to reverse because of
unpreserved error could be fatal.‖ Puckett v. United States,
556 U.S. 129, ---, 129 S.Ct. 1423, 1428 (2009) (quoting
United States v. Padilla, 415 F.3d 211, 224 (1st Cir. 2005)
(en banc) (Boudin, C. J., concurring)).




                              3
FED.R.CRIM.P. 52(B). To establish plain error, the appealing
party must show that an error (1) was made, (2) is plain (i.e.,
clear or obvious), and (3) affects substantial rights. United
States v. Lessner, 498 F.3d 185, 192 (3d Cir. 2007). Even if
an appellant makes this three-part showing, an appellate court
may exercise its discretion to correct the error only if it
―seriously affects the fairness, integrity or public reputation of
judicial proceedings.‖ Id. (quoting United States v. Olano,
507 U.S. 725, 732 (1993).

        The Supreme Court has specifically held that appellate
courts can review unpreserved claims for plain error only.
United States v. Olano, 507 U.S. at 731. The Supreme Court
has recently again instructed that, ―[i]f an error is not properly
preserved, appellate-court authority to remedy the error ... is
strictly circumscribed‖ to plain-error review. Puckett v.
United States, 556 U.S. 129, ---, 129 S.Ct. 1423, 1428 (2009).
Applying plain-error review in the sentencing context ―serves
worthy purposes,‖ including ―induc[ing] the timely raising of
claims and objections‖ to give the District Court an
opportunity to correct error, if error there be. See Id. at 1428,
1433. Indeed, in United States v. Booker, the Supreme Court
instructed that we are to ―apply ordinary prudential doctrines,
determining, for example, whether the issue was raised below
and whether it fails the ‗plain-error‘ test‖ when reviewing
sentences. 543 U.S. 220, 268 (2005).

       The Federal Rules expressly provide that ―[a] party
may preserve a claim of error by informing the court-when
the court ruling or order is made or sought-of the action the
party wishes the court to take, or the party‘s objection to the
court‘s action and the grounds for that objection.‖
FED.R.CRIM.P. 51(b) (emphasis added). Furthermore, the




                                4
―objection must be specific enough not only to put the judge
on notice that there is in fact an objection, but to serve notice
as to the underlying basis for the objection.‖ United States v.
Russell, 134 F.3d 171, 179 (3d Cir. 1998). Here, the
Government‘s sole request at the end of the sentencing
hearing was for a formal determination on prejudgment
interest as it affects restitution. J.A. 1625. Nor did the
Government avail itself of the opportunity to challenge the
District Court‘s sentencing calculations by filing a Rule 35(a)
motion post-sentencing. It did file a response to Fumo‘s Rule
35(a) motion, but failed to raise the issue, despite
acknowledging that such motions can be used to attack
technical errors that might otherwise require remand. J.A.
1635-36. See United States v. Miller, 594 F.3d 172, 182 (3d
Cir. 2010).      Neither of these actions preserved the
Government‘s objections nor put the District Court on notice
that the Government perceived a problem with its sentencing
calculations post-departure.

       The Government contends that it challenged the
District Court‘s failure to undertake a post-departure
recalculation in its sentencing memoranda and at the
sentencing hearing. Government‘s Opening Brief at 4. There
is no such challenge in the record. Neither in its own
sentencing memoranda nor in its response to Fumo‘s Rule
35(a) motion does the Government object to the failure to
recalculate post-departure. The portion of the transcript the
Government points to in its brief (J.A. 1558) is not an
objection. Aside from the Government‘s criticism of our
opinion in Gunter, infra., this transcript portion is merely a
discussion with the District Court regarding the application of
departures or variances generally. I cannot find an objection
to the District Court‘s departure or its perceived failure to




                               5
recalculate a Guidelines range noted there. And, of course,
the Government could not have objected because the decision
it claims on appeal to be error had not even been made. It is
obvious to me why the Government did not object: it thought
then, as I think now, that the District Court did not err.3

        I further note that the Government has argued for plain
error review time after time in situations where a defendant
fails to object to a procedural error. See, e.g., United States v.
Reevey, 631 F.3d 110, 112 n. 3 (3d Cir. 2010); United States
v. Bradica, No. 09-2420 (Government‘s Brief); United States
v. Bagdy, No. 08-4680 (Government‘s Brief); United States v.
Swift, No. 09-1985 (Government‘s Brief). The government
knows the rules and cannot have it both ways, arguing for
plain error review when the defendant fails to object and
abuse of discretion when it slips up. Although I would

3
  The majority‘s reliance on our decision in United States v.
Sevilla, 541 F.3d 226 (3d Cir. 2008) provides them no cover.
In Sevilla, we stated that ―‗[a]n objection to the
reasonableness of the final sentence will be preserved if,
during sentencing proceedings, the defendant properly raised
a meritorious factual or legal issue relating to one or more of
the factors enumerated in 18 U.S.C. § 3553(a).‘‖ Id. at 231
(quoting United States v. Grier, 475 F.3d 556, 571 n. 11 (3d
Cir.2007) (en banc)). But Sevilla is readily distinguishable
on its facts. In Sevilla, the defendant-appellant had raised his
legally recognized grounds for downward variance in a
written sentencing memorandum prior to the sentencing
hearing. 541 F.3d at 231. The Government here never raised
the issue of the lack of a post-departure recalculation before
sentencing or afterward.




                                6
employ plain error review, I will meet my majority colleagues
where they stand and review this issue for an abuse of
discretion.

                               B.

       The majority faults the District Court‘s application of
step two of the Gunter analysis. Specifically, my colleagues
fault the District Court for failing to announce a final
Guidelines sentencing range after granting a departure and for
failing to clearly articulate whether it was granting Fumo a
departure or a variance. Maj. Op. at 49. I disagree with them
on both points.

       My reading of the record leaves me with no doubt as to
the District Court‘s decision or its reasoning:          Judge
Buckwalter granted Fumo a departure under § 5H1.11 for his
good works. Fumo specifically moved for a departure on two
fronts: his ill health and his good works. The District Court
specifically denied his request to depart for ill health, but
granted him a departure for his good works: ―You worked
hard for the public . . . and I‘m therefore going to grant a
departure from the Guidelines.‖          J.A. 1622.      Judge
Buckwalter reaffirmed this ruling by commenting ―I did make
a finding as to what the Guidelines are, but I‘ve also added a
finding that I‘m going to depart from them.‖ J.A. 1623.

       The District Court clarified its ruling even further after
sentencing. Fumo filed a motion to clarify his sentence,
given that Judge Buckwalter ruled on the departure request
during a discussion of the § 3553(a) factors. In his motion,
Fumo specifically asked the District Court whether it had
intended to grant a variance rather than a departure.




                               7
Interestingly, in reply, the Government argued that ―the Court
repeatedly stated that it decided to grant the departure motion
based on public service.‖ Id. at 1635. The Government
argued:

              But, it was Fumo himself who
              requested that the Court grant a
              downward departure on the basis
              of his public service. In his letter
              to the Probation Office stating
              objections to the presentence
              report, dated June 23, 2009,
              Fumo‘s counsel, while noting the
              possibility of both a departure and
              a variance, stated the following in
              a section entitled ―Grounds for
              Departure‖:      ―A        downward
              departure for Mr. Fumo is
              appropriate because of Mr.
              Fumo‘s health issues and his
              public service, either standing
              alone or in combination.‖ Letter
              at 15. See also id. at 16 (―Mr.
              Fumo‘s record is not merely
              ordinary, rather it is extraordinary.
              As such, § 5H1.11 it [sic] is a
              valid basis for a downward
              departure.‖). Next, at a hearing
              on July 8, 2009, regarding the
              guideline calculation, Fumo‘s
              counsel strenuously advanced this
              position. In response, on July 9,
              2009, the Court issued an order




                               8
             which stated in part, ―As it now
             stands, the offense level is 33.
             The court has already indicated
             that no departure will be granted
             based upon health, but a decision
             on a departure based upon good
             works will be reserved until time
             of sentencing on July 14, 2009.
             Then, at the sentencing hearing on
             July 14, 2009, the Court
             repeatedly stated that it decided to
             grant the departure motion based
             on public service.          As the
             sentencing hearing for Ruth
             Arnao on July 21, 2009, the Court
             reiterated that it had given a
             departure to Fumo while stating
             that it would not similarly depart
             from Arnao‘s guideline range, but
             rather would grant a variance.‖

J.A. 1635. Although the Government had no trouble finding
the District Court‘s intention to grant a downward departure
crystal clear at sentencing, on appeal it disingenuously
waffles on the issue and points to a statement that Judge
Buckwalter added to his official ―Statement of Reasons‖ for
sentencing:

             I next determined whether there
             should be a departure from the
             guidelines and announced at the
             sentencing hearing that there
             should be based on my finding




                              9
             extraordinary good works by the
             defendant. I did not announce
             what specific guideline level the
             offense fell into; that is to say, the
             precise number of levels by which
             I intended to depart because until
             I considered all other sentencing
             factors, I could not determine in
             precise months the extent that I
             would vary from the guidelines.

             Having advised counsel of the
             offense level that I found and my
             intent to depart downward, I then
             proceeded to hear from counsel
             their respective analyses of what
             an appropriate sentence should be.

             The procedure I followed was
             perhaps more akin to that
             associated with a variance than a
             downward departure because I
             never announced nor have I ever
             determined to what guideline
             level I had departed. Ultimately,
             the argument over which it was
             elevated form over substance.

App. at 185-86. My colleagues seize upon this statement,
finding the District Court‘s use of the words ―vary‖ and
―depart‖ confusing. Indeed, the Majority admits that but for
this word choice, they would have found Judge Buckwalter‘s
intentions clear. Reviewing for abuse of discretion, I find




                              10
none. The record is sufficiently clear for me to bend toward
the District Court and defer to its reasoning.

        I agree with Fumo here and think this statement clears
up any possible ambiguity instead of creating one. Judge
Buckwalter identifies the standard for granting a departure
based on good works – extraordinary behavior and/or actions.
See United States v. Kulick, 629 F.3d 165, 176 (3d Cir. 2010).
Furthermore, the judge‘s statement indicates that he granted a
downward departure for good works, not a variance: ―I next
determined that there should be a departure from the
guidelines . . .‖ Indeed, the sentence the majority points to as
generating all the confusion (―I did not announce what
specific guideline level the offense fell into; that is to say, the
precise number of levels by which I intended to depart
because until I considered all other sentencing factors, I could
not determine in precise months the extent that I would vary
from the guidelines.‖) contains a concrete statement that the
District Court was granting a departure. I read the use of the
word ―vary‖ in this particular phrase not hyper-technically or
as a term of art, but rather in its everyday sense, meaning to
alter or adjust. I am neither confused nor unable to ascertain
whether a departure or a variance was granted here. It was a
departure, clearly.

        And, even were I in need of further clarification, I
need turn no further than to Ruth Arnao‘s sentencing hearing.
The record there firmly establishes that the District Court
knew it was granting Fumo a departure. At Arnao‘s
sentencing hearing, Judge Buckwalter specifically
differentiated between the departure he gave Fumo and the
variance he awarded Arnao: ―So the fact that you, Ms. Arnao,
at least did something in your lifetime to help other people, to




                                11
help other charities, it‘s not enough for me to depart from the
guidelines, but it‘s certainly enough for me to consider to
vary in some way from what the guidelines suggest here.‖
J.A. 1836.

       Let us not split hairs. Judge Buckwalter granted Fumo
a § 5H1.11 departure and I see no reason to vacate and
remand Fumo‘s sentence because the District Court‘s
intentions were unclear.

       My colleagues also fault Judge Buckwalter for failing
to conduct a post-departure recalculation of the advisory
sentencing range. I have two points of disagreement with
them here. First, to my mind, the requirement of a post-
departure recalculation of the advisory sentencing range,
post-departure, injects a superfluous layer of computation into
an already unnecessarily hyper-technical process. Second,
Judge Buckwalter did recalculate the sentencing range post-
departure.

        In United States v. Gunter, 462 F.3d 237, 247 (3d Cir.
2006), we established a relatively straightforward procedure
for District Courts to follow in sentencing a criminal
defendant post-Booker. First, district courts are to calculate a
defendant‘s sentencing Guidelines range precisely as they
would have pre-Booker. Id. Second, district courts were
instructed to rule on any motions and state on the record
whether they were granting a departure and, if so, how such a
departure affects the initial Guidelines calculation. A district
court should also take into account our pre-Booker case law,
which continues to have advisory force. Id. Third and
finally, district courts are required to exercise their discretion
by considering the relevant 18 U.S.C. § 3553(a) factors in




                               12
setting their sentences, regardless of whether it varies from
the original calculation. Id.

        Although Gunter requires a district court to calculate
the Guidelines range, that range is only ―a starting point and
initial benchmark‖ of the sentencing analysis. United States
v. Grober, 624 F.3d 592, 609 (3d Cir. 2010) (citing Gall v.
United States, 552 U.S. at 49 (―As a matter of administration
and to secure nationwide consistency, the Guidelines should
be the starting point and the initial benchmark.‖). I see no
requirement that a district court, after concluding that a
departure is warranted, recalculate and specify a new adjusted
sentencing range. Gunter only requires that a district judge
indicate how the departure ―affects the Guidelines
calculation.‖ Gunter, 462 F.3d at 247.            A statement
indicating whether the departure would go above or below the
previously determined sentencing range would suffice.



       The majority finds additional error in what they
perceive as the District Court‘s failure to recalculate Fumo‘s
advisory Guidelines range after announcing it would grant the
former state senator a departure. I find no such error. Judge
Buckwalter did recalculate the advisory range, albeit in terms
of months rather than levels. The advisory Guidelines range
was recalculated to be 121 to 151 months. He adopted this
range, thereby satisfying step one of the Gunter analysis. At
step two, he ruled on departure motions, announcing a
downward departure to Fumo for his good works under §
5H1.11 and denying the Government‘s requested upward
departure. Judge Buckwalter then reviewed the § 3553(a)
factors and decided against any variances, satisfying step




                             13
three. He then announced a sentence of fifty-five months,
revealing a sixty-six month departure.

       The recalculation the majority misses is easily found –
a departure of sixty-six months from the 121 month bottom of
the advisory Guidelines range left Fumo with a fifty-five
month sentence. It was not procedurally unreasonable for the
District Court to determine the extent of its departure in terms
of months instead of levels. See United States v. Torres, 251
F.3d 138 (3d Cir. 2001). My colleagues try to brush Torres
aside as a ―pre-Booker case.‖ Maj. Op. at 48. This they
cannot do. Torres retains vitality, post-Booker, as an
advisory decision which we require district courts to consult.
See Gunter, 462 F.3d at 247 (noting that, at Gunter’s first and
second step, our pre-Booker case law is still to be considered,
given its advisory force.); United States v. Floyd, 499 F.3d
308, 312, n.6 (3d Cir. 2007) (citing Torres for the factors to
be considered in a §5K1.1 departure post-Booker); see also
Vazquez-Lebron, 582 F.3d at 445.

       Further, requiring the District Court to recalculate a
sentencing range based on its sixty-six month departure is
unfair because the sentencing ranges would overlap. As
Fumo pointed out, a sixty-six month departure would have
put him into levels 23 and 24, leaving the District Court with
a quandary: which level‘s sentencing range should it refer to
under § 3553(a)(4)? Asking the sentencing judge to choose a
level comes close to requiring him to conceptualize the
departure in terms of levels, which, of course, he does not
have to do. See Torres, 251 F.3d at 151.

       Looking at this another way, I can easily find a
recalculated sentencing range on this record. During the




                              14
sentencing proceedings, the District Court granted Fumo‘s
motion for a downward departure based on his good works
and then chose, in the context of considering the required
statutory factors, a sentence that adequately accounted for this
finding—fifty-five months. In sentencing Fumo to fifty-five
months, Judge Buckwalter implicitly announced a departure
of eight levels, and then selected a corresponding range (51 to
63 months) at the § 3553(a) stage. Id. (―a departure measured
in months is easily translated into offense levels.‖). I would
not require more.

        Judge Buckwalter complied with the requirements we
have articulated for sentencing. He began by calculating an
initial Guidelines range, a range which neither party argued
he arrived at incorrectly. He then announced, at step two, that
he would grant Fumo‘s motion for a departure, thereby
indicating that his ultimate sentence would be below the
advisory Guidelines range. At step three, he reviewed the §
3553(a) factors, determined he would not grant a variance,
and announced a sentence of fifty-five months. The District
Court touched all the procedural bases and consequently, did
not err.

                              C.

       Finally, even were I to agree with the majority and find
procedural error in the District Court‘s failure to recalculate
the advisory Guidelines range post-departure, I would still
dissent from vacating the sentence. I see no evidence that the
District Court would have arrived at another sentence had it
engaged in the additional post-departure calculation now
required by the majority.        As I stated before, Judge
Buckwalter presided over this trial for five months and knows




                              15
more about Fumo than any of us. He granted Fumo a
departure based on his good works and, in the context of full
consideration of the § 3553(a) factors, chose a sentence that
adequately accounted for his findings—fifty-five months
imprisonment, a fine and restitution. This sentence would
have been no different had the District Court announced its
departure in terms of levels (8) and then selected a sentence
from the corresponding range (51 to 63 months) at the §
3553(a) stage. This is exactly what Judge Buckwalter may do
on re-sentencing to correct what the majority has perceived to
be procedural error.4

        I recognize that if we find procedural error at any step,
we will generally ―remand the case for re-sentencing, without
going any further.‖ United States v. Merced, 603 F.3d 203,
214 (3d Cir. 2010). This approach, however, opens us up to
serial appeals on procedural error issues before we reach our
substantive reasonableness review. United States v. Lychock,
578 F.3d 214, 219-20 (3d Cir. 2009) (finding procedural error
yet proceeding to analyze substantive reasonableness). See
also United States v. Stewart, 597 F.3d 514, 525 (2d Cir.
2010) (Cabranes, J., dissenting sur denial of rehearing). Here,
the record clearly demonstrates that the district court
departed, why it departed, and the extent to which it departed.

                               II.



4
  Indeed, why put the District Court through a complete re-
sentencing? If the majority finds the record confusing, why
not, instead of vacating the judgment of sentence, simply
remand for clarification?




                               16
       I join my colleagues, however, in affirming Fumo‘s
and Arnao‘s convictions. As the majority opinion relates,
Fumo argues that the District Court abused its discretion in
not dismissing juror Eric Wuest as a consequence of Wuest‘s
Internet postings during the trial and jury deliberations.5
Fumo also charges the District Court with abusing its
discretion by refusing to question the other jurors about their
exposure to juror Wuest‘s postings. I agree with my
colleagues and find no abuse of discretion. I write separately,
however, to briefly highlight the challenges that the
proliferation of social media presents to our system of justice.

         ―The theory of our system,‖ wrote Justice Holmes, ―is
that the conclusions to be reached in a case will be induced
only by evidence and argument in open court, and not by any
outside influence, whether of private talk or public print.‖
Patterson v. Colorado, 205 U.S. 454, 462 (1907). Justice
Holmes, of course, never encountered a juror who ―tweets‖
during the trial. Courts can no longer ignore the impact of
social media on the judicial system, the cornerstone of which
is trial by jury. We have always understood that, although we
operate from the presumption that a jury‘s verdict will be just
and fair, jurors themselves can be influenced by a host of
external influences that can call their impartiality into
question. The availability of the Internet and the abiding
presence of social networking now dwarf the previously held
concern that a juror may be exposed to a newspaper article or

5
 An audio recording of the in-chambers examination of Juror
Wuest by the District Court and counsel is online and
available         for         listening.               See
http://www.philly.com/inquirer/special/4133127.html    and
http://www.philly.com/inquirer/special/41331457.html.




                              17
television program. The days of simply instructing a jury to
avoid reading the newspaper or watching television are over.
Courts must be more aggressive in enforcing their
admonitions.

        The Internet, especially social networking sites like
Facebook and Twitter, have created a society that is
―connected‖ at all times. Facebook, created in 2004, is
arguably the most popular social networking platform.
Facebook allows people to communicate with their family,
friends and co-workers and to share information through the
digital mapping of people‘s real-world social connections.
See         Facebook,        Factsheet,       available      at
http://www.facebook.com/press/info.php (last visited July 18,
2011). Currently, Facebook has over 500 million registered
users, and these users spend over 700 billion minutes per
month using the site. Id. The average user is connected to 80
community pages, groups or events. Id. Twitter was created
in 2006 and is a real-time information network that lets
people share and discuss what is happening at a particular
moment in time.                See Twitter, available at
http://twitter.com/about (last visited July 18, 2011). Twitter
has approximately 100 million users and differs from
Facebook by allowing its users to send out a text message
from their phones (up to 140 characters) to their followers in
real time. Id. It is estimated that Twitter users send out over
50 million of these messages (or, Tweets) per day. Id. In
other words, the effects and affects of electronic media are
pervasive.

       Jurors are not supposed to discuss the cases they hear
outside the jury deliberation room. However, we know that




                              18
jurors have used Twitter and Facebook to discuss their
service. For example:

       *      In an Arkansas state court, a defendant
              attempted to overturn a $12.6 million verdict
              because a juror used Twitter to send updates
              during the trial. One post stated ―Oh, and
              nobody buy Stoam. It‘s bad mojo and they‘ll
              probably cease to exist now that their wallet is
              12m lighter.‖6

       *      In Maryland, Baltimore Mayor Sheila Dixon
              sought a mistrial in her embezzlement trial
              because, while the trial was going on, five of
              the jurors became ―Facebook friends‖ and
              chatted on the social networking site, despite
              the Judge‘s instructions not to communicate
              with each other outside of the jury room.
              Dixon‘s attorneys argued that these ―Facebook
              friends‖ became a clique that altered the jury
              dynamic.7

6
  See Renee Loth, Mistrial by Google, Boston Globe, Nov. 6,
2009,           at          A15,           available             at
http://www.boston.com/bostonglobe/editorial_
opinion/oped/articles/2009/11/06/mistrial_by_google/
(moving for a mistrial and reversal of a $12 million judgment
based on a juror's Twitter posting stating: ―oh, and nobody
buy Stoam. Its [sic] bad mojo and they'll probably cease to
Exist [sic], now that their wallet is 12m lighter.‖) (last visited
August 1, 2011).
7
   Brendan Kearny, Despite Jurors Warning, Dixon Jurors
Went        on     Facebook        (2009),      available       at




                                19
      *      In the United Kingdom, a case was thrown out
             because a juror sitting on a criminal matter
             wrote on her Facebook page that she was
             uncertain of the defendant‘s guilt or innocence
             and created a poll for her friends to vote.8

The examples of this type of behavior are legion. Not only
are jurors tweeting, but they have been conducting factual
research online, looking up legal definitions, investigating
likely prison sentences for a criminal defendant, visiting
scenes of crimes via satellite images, blogging about their
own experiences and sometimes even reaching out to parties
and witnesses through ―Facebook friend‖ requests. See David
P. Goldstein, The Appearance of Impropriety and Jurors on
Social Networking Sites: Rebooting the Way Courts Deal with
Juror Misconduct, 24 GEO. J. LEGAL ETHICS 589 (2011).

      Of course, jurors doing independent research and/or
improperly commenting on a case are not new phenomena.
The Internet and social networking sites, however, have
simply made it quicker and easier to engage more privately in
juror misconduct, compromise the secrecy of their


http://mddailyrecord.com/2009/12/02/despite-
judge%E2%80%99s-warning-dixon-jurors-went-on-
facebook/ (last visited August 1, 2011).
8
  Urmee Khan, Juror Dismissed From a Trial After Using
Facebook to Help Make a Decision, Telegraph.co.uk, Nov.
24,                        2008,                       http://
www.telegraph.co.uk/news/newstopics/lawreports/3510926/J
uror-dismissed-from-a-trial-after-using-Facebook-to-help-
make-a-decision.html (last visited August 1, 2011).




                             20
deliberations, and abase the sanctity of the decision-making
process. As we have seen in this case, jurors can use services
like Facebook and Twitter to broadcast a virtual play-by-play
of a jury‘s deliberations.

         Technology, of course, will continue to evolve and
courts must creatively develop ways to deal with these issues.
In addition to the endorsement the majority opinion gives the
recently proposed model jury instructions, I would encourage
district courts to go further. We must first educate jurors that
their extra-curial use of social media and, more generally, the
Internet, damages the trial process and that their postings on
social media sites could result in a mistrial, inflicting
additional costs and burdens on the parties specifically, and
the judicial system generally. I suggest that district courts
specifically caution jurors against accessing the Internet to do
research on any issues, concepts or evidence presented in the
trial, or to post or seek comments on the case under review.

        Indeed, I can envision a situation where a district judge
might be called upon to sanction jurors for inappropriate
Internet research or postings on social networking sites that
threaten the integrity of the trial. Such sanctions are not
unheard of: a juror was recently fined $250.00 and ordered to
write a five-page essay on the Sixth Amendment by a
Michigan judge for posting biased comments about the case
on Facebook. Jameson Cook, VIDEO: Dismissed Juror
Ordered to Write Essay About Sixth Amendment, Daily
Tribune Review, September 2, 2010, available at
http://www.dailytribune.com/articles/2010/09/02/news/doc4c
806a7b7e451383425678.txt (last visited July 19, 2011). The
threat of either fining jurors or holding them in contempt of
court due to Internet misconduct may become necessary to




                               21
deter it and convey a public message that the judicial system
cannot tolerate such behavior. Finally, the Bar also bears
some responsibility. During voir dire, attorneys should
routinely question jurors on their Internet usage and social
networking habits. A juror‘s Internet activities have the
potential to result in prejudice against a defendant, and
counsel must expand the voir dire questioning to include
inquiries into online activity.

        Facebook, Twitter, and other Internet communication
sites are a boon to the law and the courts. Improperly used,
however, they could do real harm. Problems with jurors‘
continued use of these sites and others during their service
must be anticipated and deterred.

                            III.

       In conclusion, I would affirm Fumo‘s and Arnao‘s
convictions. I would also affirm the sentences imposed by
the District Court.




                             22
