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


10-18-2002

USA v. Cross
Precedential or Non-Precedential: Precedential

Docket No. 00-3466




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PRECEDENTIAL

       Filed October 18, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3466

UNITED STATES OF AMERICA

v.

WALTER V. CROSS,
a/k/a
Bobo

       Walter V. Cross,
       Appellant

No. 00-3488

UNITED STATES OF AMERICA

v.

JULES C. MELOGRANE,

       Appellant

Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action Nos. 94-cr-00233-1/2)
District Judge: Honorable Donetta W. Ambrose

Argued December 6, 2001

Before: ALITO, RENDELL and AMBRO, Circuit Judges

(Opinion filed October 18, 2002)




       R. Damien Schorr, Esquire
        (Argued)
       1015 Irwin Drive
       Pittsburgh, PA 15236

        Attorney for Appellant
       Walter V. Cross

       W. Thomas McGough, Jr., Esquire
       (Argued)
       Efrem Grail, Esquire
       Reed Smith
       435 Sixth Avenue
       Pittsburgh, PA 15219

        Attorney for Appellant
       Jules C. Melograne

       Linda L. Kelly
       United States Attorney
       Harry Litman
       United States Attorney
       Paul J. Brysh (Argued)
       Assistant United States Attorney
       Office of the United States Attorney
       633 U.S. Post Office and Courthouse
       Pittsburgh, PA 15219

        Attorneys for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge:

Jules C. Melograne and Walter V. "Bo" Cross conspired to
fix hundreds of cases in the Court of Common Pleas of
Allegheny County, Pennsylvania. After a trial in the District
Court, a jury convicted them of conspiring to commit mail
fraud in violation of 18 U.S.C. SS 371 and 1341,1 and
_________________________________________________________________

1. Section 371 (the general conspiracy statute) prohibits conspiring with
one or more other persons to commit any offense against or to defraud
the United States or one of its agencies, if one of the conspirators does
an act in furtherance of the conspiracy. Section 1341 prohibits using the
mail to execute or attempt to execute a fraudulent scheme. For
simplicity, we use "S 1341" as shorthand for "conspiracy to commit mail
fraud."

                                 2


conspiring to violate Pennsylvania citizens’ right to a fair
and impartial trial in violation of 18 U.S.C. S 241.2 They
appealed, and in United States v. Cross, 128 F.3d 145 (3d
Cir. 1997) (Cross I), we affirmed theirS 241 convictions but
reversed their S 1341 convictions.

In their current appeals, Cross and Melograne argue that
their appellate counsel in Cross I was ineffective for failing
to argue that United States v. Pelullo, 14 F.3d 881 (3d Cir.
1994), required us to set aside their S 241 convictions on
"prejudicial spillover" grounds if we reversed their S 1341
convictions. Without deciding whether their counsel acted
reasonably in eschewing the Pelullo argument, we hold that
their ineffective assistance of counsel claim fails to satisfy
the prejudice prong of Strickland v. Washington , 466 U.S.
668 (1984), because it is not reasonably probable that the
Pelullo argument would have succeeded had it been raised.

I. Background

The Allegheny County Court of Common Pleas ("the Court
of Common Pleas") is a court of general trial jurisdiction.
The Statutory Appeals Division of that Court (the"Statutory
Appeals Court") conducts de novo hearings in appeals from
the decisions of the minor judiciary in cases involving
summary criminal offenses and motor vehicle and
municipal ordinance violations. The minor judiciary is
comprised of fifty-five elected district justices as well as
appointed magistrates within the City of Pittsburgh. Jules
Melograne was a district justice in the Court of Common
Pleas. Cross was the supervisor of the Statutory Appeals
Court. Cross’s duties included determining whether
defendants, attorneys, and witnesses (who were generally
police officers) were present when a hearing was to begin,
managing the order in which hearings were held, handling
requests for postponements, and signing pay vouchers for
police officers who testified. Nunzio Melograne, Jules’s
brother, was the "tipstaff " for Judge Raymond Scheib of the
Statutory Appeals Court. Nunzio Melograne’s duties
included serving as an aide to Judge Scheib, keeping the
_________________________________________________________________

2. Section 241 proscribes conspiring to injure a person in the exercise of,
or because he exercised, a federal right or privilege.

                                3


Statutory Appeals Court’s calendar, maintaining and
organizing case files, calling cases, swearing in witnesses,
and performing other clerical tasks.

From December 1990 through July 1993, Cross and the
Melogranes used "their authority and access to the decision
maker"--Judge Scheib--to dictate the results in several
hundred Statutory Appeals Court hearings.3 Cross I, 128
F.3d at 146. They fixed cases in various ways. For instance,
Cross often produced not-guilty verdicts by asking police
officer witnesses to leave court before testifying, or by
calling the cases in which they were to testify before they
arrived. Id. Often Cross requested during a hearing that
Judge Scheib take the case "c.a.v." (curia advisari vult, a
Latin phrase meaning colloquially under advisement); Cross
and Nunzio Melograne would then meet with the Judge in
his chambers after the hearing, and a not-guilty verdict
would ensue minutes later. Id. at 146-47. In exchange for
fixing cases, Cross and the Melogranes received various
gifts and favors from the beneficiaries, such as tickets to
Pittsburgh Steelers games, fruit baskets, and jackets.

Although most of the results they engineered were
favorable to defendants, Cross and the Melogranes 4 also
ensured that many defendants were found guilty. If they
desired a guilty verdict in a particular case, they would
simply tell the Judge to find the defendant guilty. In one
typical example, a defendant was found guilty after Cross
instructed the Judge to "find this sucker guilty." Id. at 147.
Some clearly innocent defendants were found guilty as a
result. For example, Cross and the Melogranes got the
Judge to find one defendant guilty even though the
_________________________________________________________________

3. As a jury convicted Cross and the Melogranes on both counts, we view
the evidence presented at trial in the light most favorable to the
Government. United States v. Scott, 223 F.3d 208, 209 n.1 (3d Cir.
2000); United States v. Davis, 183 F.3d 231, 238 (3d Cir. 1999).

4. Because a participant in a conspiracy is liable for the reasonably
foreseeable acts of his coconspirators in furtherance of the conspiracy
(e.g., Pinkerton v. United States, 328 U.S. 640, 647 (1946); United States
v. Lopez, 271 F.3d 472, 480 (3d Cir. 2001)), for convenience we will often
use "they" or "Cross and the Melogranes" as the subject when referring
to acts by Cross or one of the Melogranes in furtherance of the S 241
conspiracy.

                                  4


prosecutor wanted to withdraw the charge, as the evidence
did not show a violation. Id.

In November 1994 a federal grand jury in the Western
District of Pennsylvania indicted Cross and the Melogranes.5
Count I alleged that the three violated S 1341 by conspiring
"to deprive the citizens of Allegheny County of their
intangible right to honest services of government
employees, furthered by the use of the United States mail."6
The factual allegations underlying Count I--which were
divided into three sections--related to Cross and the
Melogranes fixing cases both for and against defendants,
and mailing notices of the dispositions to the parties. The
first section of Count I alleged that they caused 243 cases
to be dismissed by starting hearings before police officers
arrived to testify or by asking the officers to leave before
they testified. The second section alleged that Cross and
the Melogranes used their influence over Judge Scheib to
cause twenty-eight defendants to be found guilty. The third
section alleged that they obtained favorable dispositions for
200 defendants. Count II, which pertained only to the "to
be found guilty" cases (the second section of Count I),
alleged that Cross and the Melogranes violated S 241 by
conspiring to deprive twenty-eight Pennsylvania residents of
their right to a fair and impartial trial.7

Before trial, Cross and the Melogranes moved under
Federal Rule of Criminal Procedure 14 to sever Counts I
and II.8 The District Court denied their motion. It explained
_________________________________________________________________

5. According to the FBI’s lead investigator and the Assistant United
States Attorney who prosecuted the case, the Government did not have
enough evidence to indict Judge Scheib.

6. Count I also   alleged that the defendants conspired to defraud the
Commonwealth by   depriving it of fines, but the Government did not
object when the   District Court submitted the S 1341 count "to the jury
as a conspiracy   with the single objective of depriving citizens of the
honest services   of the defendants." Cross I , 128 F.3d at 147 n.1.

7. The indictment also charged Jules Melograne with ten counts of mail
fraud. These counts, which are not pertinent here, were severed
pursuant to the defendants’ pretrial motion and were later dismissed.

8. Rule 14 provides in relevant part that a district court may order
separate trials if it appears that joinder will prejudice a defendant.

                                5


that because "[t]he criminal acts of one co-conspirator in
furtherance of the conspiracy are imputed to all other
members of the conspiracy," "the acts of all the alleged
conspirators would be admissible even in severed trials."
United States v. Cross, Crim. No. 94-233, slip op. at 8 (W.D.
Pa. Aug. 3, 1995). Further, it found that "the conduct
charged is distinct as to each conspiracy," and that "[w]ith
such distinct evidence, the jury will be able to separate the
evidence." Id. The Court rejected the defendants’ claim that
they might want to testify as to Count I, but not Count II,
because they "failed to specify what testimony they wish to
give on one count or their reasons for not wishing to testify
on the other." Id.

The jury trial of Cross and the Melogranes lasted three
months. The evidence on both counts was overwhelming.
The Government introduced tapes of more than fifty
conversations, intercepted by FBI surveillance, in which the
conspirators discussed their plans to fix various cases.
Each juror heard the tapes and received transcripts of the
conversations. In addition, the Government presented
testimony by FBI Special Agent John Fiore (who
investigated the case-fixing scheme), Suzanne Petrocelly
(the courtroom clerk), and Catherine Stowe (the Assistant
District Attorney who prosecuted most of the cases in the
Statutory Appeals Court). The latter two had cooperated
with the FBI’s investigation by keeping informal records of
the cases that Cross and the Melogranes fixed. Further, the
Government introduced a notebook in which Nunzio
Melograne recorded most of the cases that the conspirators
planned to fix, including twenty-five of the to-be-found-
guilty cases. The Government also introduced evidence that
Cross put a star, check mark, or "c.a.v." notation next to a
case on his trial calendar to designate the result. Cross I,
128 F.3d at 147.

The evidence with respect to the to-be-found-guilty cases
was especially powerful. The Government presented either
a statement by one of the conspirators or an entry in
Nunzio Melograne’s notebook to prove each of these counts.
Nunzio Melograne’s notebook demonstrated that Cross and
the Melogranes often got defendants found guilty to please
police officers and other friends. For instance, one

                                6


defendant was found guilty because an entry in the
notebook stated: "[G]uilty, hard time, Officer M.A. Scott."
Another entry in the notebook lists two case numbers and
says that "Officer Smith" wanted the defendants in those
cases found guilty. Still another defendant was found guilty
after Nunzio Melograne wrote in his notebook: "Hesse,
guilty, Jules, Hargrove," and Jules called Nunzio the
morning of the hearing and said, "[S]tick it in their rear
ends. They are bastards." On other occasions, Cross and
the Melogranes got defendants found guilty because they
did not like them or their lawyers. For example, in one to-
be-found-guilty case, Cross said to Nunzio Melograne about
the defendant’s attorney, "Screw him. He’s not our friend."

Moreover, Cross and the Melogranes boasted of their
ability to get defendants found guilty. The Government
played for the jury a conversation with a local police chief,
taped by the FBI, in which Jules Melograne promised to
make sure that a defendant was found guilty and bragged
about his influence (via his brother Nunzio) over Judge
Scheib:

       I’ll get a’hold [sic] of my brother at home, and uh, if it
       hasn’t gone out yet . . . make sure there was a
       conviction on that. I, I told the guys, anytime they want
       a, you know, conviction . . . . I make a phone call down
       there, and my brother tells the judge, you know. . ..

       . . . .

       But my brother knows all that stuff inside and out, uh,
       he’s the judge’s tipstaff. And like I always said, you
       know, if you wanna--ya know . . . [,] somebody give ya
       a hard time, some bullshit, yeah, then, uh, you alert
       my brother down there, baboom, that’s it.

The jury convicted Cross and the Melogranes on both
counts. On direct appeal, their counsel argued that their
S 241 convictions should be reversed because no decided
case had specifically held that S 241 prohibits orchestrating
guilty verdicts, and that their S 1341 convictions should be
reversed because the mailed notifications occurred after the
completion of the fraudulent scheme. In Cross I we
unanimously affirmed their S 241 convictions. The evidence
introduced at trial showed that "Cross and the Melogranes

                                7


agreed to use their best efforts to cause the judge in the ‘to
be found guilty’ cases to consider factors other than the
merits of the case and to find against the defendant." 128
F.3d at 148. Because preexisting law made it clear that
"people are entitled to fair adjudication of their guilt before
an impartial tribunal," Cross and the Melogranes had
" ‘reasonable warning’ " that their conduct hindered the
exercise of constitutional rights, and thus were liable under
S 241. Id. at 148-50 (quoting United States v. Lanier, 520
U.S. 259, 269 (1997)).

However, we reversed their S 1341 convictions. Because
the law required mailing notices of dispositions, and
because in each case any deprivation of public employees’
honest services was complete before the notice was mailed,
the mailings "were not in furtherance of the alleged
conspiracy." Id. at 150. We remanded to the District Court
for resentencing. Id. at 152.
Cross and the Melogranes filed a petition for rehearing en
banc, in which they raised for the first time their Pelullo
argument (i.e., that the evidence introduced to prove the
S 1341 count was so prejudicial that they are entitled to a
new trial on the S 241 count). After we unanimously denied
their petition and the Supreme Court denied certiorari,
Cross v. United States, 523 U.S. 1076 (1998), they moved in
the District Court for a new trial under Pelullo in lieu of
resentencing. The Court denied their motion, finding that
they were not prejudiced by any "spillover" evidence
because "[m]uch of the evidence offered to prove [the S 1341
count] would have been admissible in a separate trial on
[the S 241 count]." United States v. Cross, Crim. No. 94-
233, slip op. at 1 (W.D. Pa. June 17, 1998) (mem. order).
The Court resentenced Cross and Jules Melograne to
twenty-seven months in prison followed by two years of
supervised release.9

Cross and the Melogranes appealed, invoking Pelullo. We
again affirmed without dissent, refusing to reach the Pelullo
issue because they did not raise it on direct appeal. United
States v. Cross (Cross II), Nos. 98-3370 & 98-3371, slip op.
_________________________________________________________________

9. Nunzio Melograne had become too ill to be resentenced, and died after
Cross II (referred to in the paragraph immediately below).

                                8


at 3 (3d Cir. Mar. 17, 1999) (unpublished table decision).
Cross and Jules Melograne obtained new counsel and
petitioned under 28 U.S.C. S 2255, alleging that their
original counsel was ineffective for failing to raise Pelullo on
direct appeal. The District Court denied relief. Upon Cross
and Jules Melograne’s application, the Court granted
certificates of appealability enabling them to appeal its
rejection of their ineffective assistance claim. Cross and
Jules Melograne timely appealed.10

II. Standard of Review

We review the District Court’s decision de novo because
both the performance and prejudice prongs of ineffective
assistance of counsel claims present mixed questions of law
and fact. Duncan v. Morton, 256 F.3d 189, 200 (3d Cir.
2001).

III. Discussion

A. Ineffective Assistance of Counsel Standard

Due process entitles a criminal defendant to the effective
assistance of counsel on his first appeal as of right. Evitts
v. Lucey, 469 U.S. 387, 396 (1985).11 The two-prong
standard of Strickland v. Washington, 466 U.S. 668 (1984),
applies to a defendant’s claim that his appellate counsel
was ineffective. Smith v. Robbins, 528 U.S. 259, 285 (2000);
Smith v. Murray, 477 U.S. 527, 535-36 (1986); U.S. v.
Mannino, 212 F.3d 835, 840 n.4 (3d Cir. 2000) (citations
omitted).12 First, the defendant"must show that counsel’s
representation fell below an objective standard of
_________________________________________________________________

10. The District Court had jurisdiction over the prosecution under 18
U.S.C. S 3231 and over Appellants’ motion to vacate their sentences
under 28 U.S.C. S 2255. We have jurisdiction to review the order denying
Appellants’ motion under 28 U.S.C. SS 1291 and 2253.
11. Evitts involved the Fourteenth Amendment’s Due Process Clause,
469 U.S. at 388-89, but the Fifth Amendment’s Due Process Clause
guarantees federal-court defendants an identical right to effective
assistance of appellate counsel. E.g., United States v. Baker, 256 F.3d
855, 859-60 & n.2 (9th Cir. 2001).
12. Although Strickland relied on the Sixth Amendment, which "does not
apply to appellate proceedings," Martinez v. Court of Appeal, 528 U.S.
152, 161 (2000), it is well-settled that its framework governs claims of
ineffective assistance of appellate counsel. Smith, 528 U.S. at 285
(stating, in a case decided after Martinez, that Strickland applies to such
claims); Mannino, 212 F.3d at 840 n.4 (same).

                                9


reasonableness." Strickland, 466 U.S. at 688. Second, he
must show that there is "a reasonable probability"--"a
probability sufficient to undermine confidence in the
outcome," but less than a preponderance of the evidence--
that his appeal would have prevailed had counsel’s
performance satisfied constitutional requirements. Id. at
694-95.

Because failure to satisfy either prong defeats an
ineffective assistance claim, and because it is preferable to
avoid passing judgment on counsel’s performance when
possible, see id. at 697-98, we begin with the prejudice
prong. This requires us to determine whether there is a
reasonable probability that we would have set aside Cross
and Melograne’s convictions on the S 241 count if their
appellate counsel had invoked Pelullo. Before making this
determination, we examine Pelullo in some detail.

B. Pelullo

In Pelullo, the defendant was convicted on forty-nine of
fifty-four counts of wire fraud, 18 U.S.C. S 1343, and one
count of violating the Racketeer Influenced and Corrupt
Organization Act ("RICO"), 18 U.S.C. S 1962, for using a
publicly held corporation and its affiliates (which he
controlled) to defraud a savings and loan institution and
the shareholders of the corporation’s affiliates. Pelullo, 14
F.3d at 885. On his first appeal, we affirmed his wire fraud
conviction on one count ("Count 54"), but reversed his
conviction on the other counts (including the RICO count)
because the District Court erroneously admitted"bank
records and summaries thereof " that did not qualify under
any exception to the hearsay rules. Id. We remanded the
case for retrial.

At the second trial, the District Court held that, under
the doctrine of collateral estoppel, the judgment of
conviction against the defendant on Count 54 established
the facts underlying that count. Id. at 889. Further, the
Court allowed the Government to introduce evidence of
those facts, including testimony by an alleged Mafia
underboss who said that he had extensive dealings with the
defendant and portrayed the defendant "as an associate of
the Mafia family." Id. at 897, 899.

                                10


After the defendant was convicted on all counts, he again
appealed. Id. at 885. We held that the District Court’s
collateral estoppel ruling violated the defendant’s Sixth
Amendment right to a jury trial. Id. at 889-97. Because the
collateral estoppel ruling prevented the defendant from
contesting the facts underlying Count 54, and because
those facts constituted the sole predicate act for the RICO
count, we reversed the defendant’s RICO conviction. Id. We
then considered whether the evidence pertaining to Count
54 had a spillover effect " ‘sufficiently prejudicial to call for
reversal’ " of the defendant’s conviction on the forty-eight
other wire fraud counts. Id. at 897-98 (quoting United
States v. Ivic, 700 F.2d 51, 65 (2d Cir. 1983)). To assess the
spillover effect, we considered four factors. Id. at 898.

First, we looked at "whether the charges are intertwined
with each other." Id. (citing United States v. Berkery, 889
F.2d 1281, 1285 (3d Cir. 1989)).13 We reasoned that Count
54 was "sufficiently similar to" the forty-eight wire fraud
counts "to create substantial confusion on the part of the
jury." Id. Not only were they all wire fraud counts, but they
also alleged "similar fraud consisting of similar conduct,
such as falsification of corporate documents and diversion
of corporate funds for personal use," and "described
_________________________________________________________________

13. In Berkery, the defendant was accused of conspiring to possess and
distribute P2P (phenyl-2-propanone, a controlled substance used to
produce methamphetamine) and of the substantive offenses of
possessing and distributing P2P. Berkery, 889 F.2d at 1282. He claimed
entrapment on the conspiracy count. Id. Because the prevailing law
required a defendant to admit all elements of the counts as to which he
claimed entrapment before he could receive a jury instruction on
entrapment, the defendant admitted all elements of the conspiracy
count. Id. After he was convicted on both the conspiracy and substantive
counts, but before we ruled on his appeal, the Supreme Court held in
Mathews v. United States, 485 U.S. 58 (1988), that a defendant is
entitled to a jury instruction on entrapment even if he denies one or
more elements of the crime. In light of Mathews , we reversed the
defendant’s conspiracy conviction. Berkery, 889 F.2d at 1285. We also
reversed his conviction on the substantive counts because they were
"closely intertwined" with the conspiracy count and we could "readily
see" that the jury might have used his admission of guilt on the
conspiracy count to convict him on the substantive counts. Id. at 1285-
86.

                                11
similar, if not identical, methods used in the alleged
frauds." Id. In addition, the counts were framed in
"identical language." Id. The "similarities of the counts" led
us to conclude that "the risk of jury confusion is
significant." Id.

Second, we examined "whether the evidence for the
different counts was sufficiently distinct to support the
verdict on other separate counts," explaining that "[i]f the
evidence was distinct, it is likely that there was no
prejudicial spillover effect." Id. (citing United States v.
Brown, 583 F.2d 659, 669 (3d Cir. 1978)). We determined
that "the jury may well have been confused because much
of the evidence on all counts was similar, e.g. , wire transfer
documents, bank records, and corporate documents." Id.
Moreover, any confusion was exacerbated by the similarity
of the charges and the nearly identical language used to
frame them in the indictment. Id.

Third, we ascertained "whether substantially all the
evidence introduced to support the invalid conviction would
have been admissible to prove other counts, and whether
the elimination of the count on which the defendant was
invalidly convicted would have significantly changed the
strategy of the trial." Id. (citing Ivic, 700 F.2d at 65). We
determined that "the evidence the government introduced to
reprove Count 54 in the second trial was not admissible to
prove the other 48 wire fraud counts," so "elimination of the
RICO count would have significantly changed trial
strategy." Id. at 899.

Finally, we examined "the charges, the language that the
government used, and the evidence introduced during the
trial to see whether they [were] ‘of the sort to arouse a
jury’ " or "branded [the defendant] with some terms with
‘decidedly pejorative connotation.’ " Id. (quoting Ivic, 700
F.2d at 65). Of the four factors, this one most clearly
highlighted the damage done by the evidence related to
Count 54. Because the District Court allowed the
Government to introduce the evidence supporting Count
54, the defendant "was not only branded as a convicted
felon and a racketeer by the government, but also portrayed
as a person associated with the Mafia." Id. The Mafia
underboss "testified to extensive dealings with" the

                                12


defendant and to "the friendly relationship between" the
defendant and "the alleged boss of the Philadelphia Mafia."
Id.

Even worse, while at the defendant’s first trial he denied
having Mafia ties and testified that he had never even met
the underboss, the District Court’s collateral estoppel ruling
prevented him from contesting the underboss’s devastating
testimony. He could not cross-examine the underboss or
contradict his testimony because "the jury would be
charged that any testimony of [the defendant] contradicting
[the underboss] was false as a matter of law by reason of
collateral estoppel." Id. We had "little doubt" that the
Mafia’s reputation influenced the jury, especially since the
facts underlying Count 54 were "reproved thoroughly and
dramatically," whereas the other retried counts were proved
by mundane evidence such as bank records and corporate
documents. Id. Thus we ordered a new trial on the forty-
eight wire fraud counts. Id. at 900.

As we explain below, Pelullo’s four factors devolve into
two inquiries: (1) whether the jury heard evidence that
would have been inadmissible at a trial limited to the
remaining valid count (i.e., "spillover" evidence); and (2) if
there was any spillover evidence, whether it was prejudicial
(i.e., whether it affected adversely the verdict on the
remaining count). Considered conversely, we have the
shorthand label "prejudicial spillover."14

As a backdrop, it is crucial to understand when
prejudicial spillover may occur. When a defendant is
convicted on two counts involving different offenses at a
single trial and an appellate court reverses his conviction
on one of them, prejudicial spillover can occur only if the
evidence introduced to support the reversed count would
have been inadmissible at a trial on the remaining count.
See United States v. Eufrasio, 935 F.2d 553, 571 (3d Cir.
_________________________________________________________________

14. Sometimes courts refer to prejudicial spillover as "retroactive
misjoinder." See, e.g., United States v. Aldrich, 169 F.3d 526, 528 (8th
Cir. 1999); United States v. Gabriel, 125 F.3d 89, 105 (2d Cir. 1997). We
believe that description can be misleading. Even if joinder was proper (as
it was in Pelullo, for instance), prejudicial spillover from the evidence
supporting a reversed count can require reversing a remaining count.

                                13


1991) (stating that a defendant was not prejudiced by the
denial of his motion to sever RICO from non-RICO counts
where "the same evidence" was admissible to prove both
sets of counts); United States v. Edwards, 303 F.3d 606,
640 (5th Cir. 2002) (holding that defendants alleging
prejudicial spillover from fraud counts dismissed by district
court after jury verdict "must show" that"otherwise
inadmissible evidence was admitted to prove the invalid
fraud claims"); United States v. Aldrich, 169 F.3d 526, 528
(8th Cir. 1999) (examining as a threshold question whether
evidence presented on reversed counts was admissible to
prove remaining count). If the evidence to prove the
overturned count would have been admissible to prove the
remaining valid count, the defendant was not prejudiced,
and there is no need to consider whether the evidence
influenced the outcome. See United States v. Prosperi, 201
F.3d 1335, 1345-46 (11th Cir. 2001) (stating that
prejudicial spillover cannot occur where the evidence was
admissible to prove the remaining valid count); United
States v. Gore, 154 F.3d 34, 49 (2d Cir. 1998) (finding no
prejudicial spillover where the ostensible prejudice to the
appellant resulted from evidence that was admissible on
one of the remaining counts); United States v. Rooney, 37
F.3d 847, 855 (2d Cir.   1994) ("Courts have concluded that
where the reversed and   remaining counts arise out of
similar facts, and the   evidence introduced would have been
admissible as to both,   the defendant has suffered no
prejudice.").

In practice, therefore, prejudicial spillover analysis under
Pelullo begins by asking whether any of the evidence used
to prove the reversed count would have been inadmissible
to prove the remaining count (i.e., whether there was any
spillover of inadmissible evidence). If the answer is "no,"
then our analysis ends, as the reversed count cannot have
prejudiced the defendant.

But if the answer is "yes," then we must consider
whether the verdict on the remaining count was affected
adversely by the evidence that would have been
inadmissible at a trial limited to that count. See 28 U.S.C.
S 2111 ("On the hearing of any appeal . . . the court shall
give judgment after an examination of the record without

                                  14


regard to errors or defects which do not affect the
substantial rights of the parties."); Fed. R. Crim. P. 52(a)
("Any error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded."); Rooney, 37
F.3d at 856 ("It is only in those cases in which evidence is
introduced on the invalidated count that would otherwise
be inadmissible on the remaining counts, and this evidence
is presented in such a manner that tends to indicate that
the jury probably utilized this evidence in reaching a verdict
on the remaining counts, that spillover prejudice is likely to
occur.") (emphasis in original). In other words, we must
consider, as we do in all contexts involving non-
constitutional trial errors, whether the "error" was harmless
--whether it is "highly probable" that it did not prejudice
the outcome. E.g., United States v. Tyler, 281 F.3d 84, 101
n.26 (3d Cir. 2002); United States v. Mathis, 264 F.3d 321,
342 (3d Cir. 2001); United States v. Helbling , 209 F.3d 226,
241 (3d Cir. 2000); United States v. Gibbs, 190 F.3d 188,
213 n.16 (3d Cir. 1999); United States v. Mastrangelo, 172
F.3d 288, 297 (3d Cir. 1999); United States v. Ellis, 156
F.3d 493, 497 n.5 (3d Cir. 1998).

In Pelullo we subsumed our harmless error analysis into
the four factors, each of which examined, in different ways,
whether the evidence introduced to prove Count 54 might
have affected adversely the jury’s verdict on the remaining
wire fraud counts. It was obvious (and thus did not require
direct discussion) that the evidence pertaining to Count 54,
none of which was admissible to prove the remaining
counts, see 14 F.3d at 899, had prejudiced the defendant.
It was readily apparent that spillover evidence likely
confused the jury because it was intertwined with the
evidence supporting the remaining counts. It was similarly
obvious that the Mafia underboss’s testimony probably
colored both the defendant’s trial strategy and ultimately
the jury’s verdict on the remaining counts. Accordingly, we
did not explicitly apply harmless error analysis as a
sequential step in our analysis. But in cases where the
prejudicial spillover effect is not so obvious, our precedents
instruct that we do so. See, e.g., United States v. Murray,
103 F.3d 310, 319 (3d Cir. 1997); United States v. Quintero,

                                15


38 F.3d 1317, 1331 (3d Cir. 1994); United States v.
Grayson, 795 F.2d 278, 290 (3d Cir. 1986).15

To summarize, Pelullo requires us to conduct two
distinct, sequential inquiries. First, was there a spillover of
evidence from the reversed count that would have been
inadmissible at a trial limited to the remaining count?
Second, if there was any spillover, is it highly probable that
it did not prejudice the jury’s verdict on the remaining
count, i.e., was the error harmless?16 With this
understanding, we now proceed to analyze Appellants’
claims.

C. Is it reasonably probable that the Pelullo argument
       would have prevailed?

1. Rule 404

Appellants contend that the evidence pertaining to the
favorable disposition cases in the invalidated S 1341
conviction could not have been introduced for a proper
purpose if their trial had been limited to the S 241 count.
They insist that this evidence would have been inadmissible
character evidence under Federal Rule of Evidence 404(a)17
because it could only have suggested that their fixing cases
in defendants’ favor made them more likely to have fixed
cases against defendants. In the alternative, they claim that
this evidence would have been excluded under Federal Rule
of Evidence 403 because its prejudicial effect would have
substantially outweighed its probative value. Contrary to
_________________________________________________________________

15. Other circuit courts similarly consider harm to the remaining counts
when another count is invalidated. See, e.g. , Prosperi, 201 F.3d at 1346;
United States v. Wapnick, 60 F.3d 948, 954 (2d Cir. 1995); Rooney, 37
F.3d at 856.
16. We conduct an analogous inquiry when reviewing the denial of a
severance motion, though the appellant bears the burden of proof in that
context. See United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991)
("Although a trial judge may have abused her discretion in denying a
Rule 14 severance motion, we need reverse a conviction only if the
appellant shows specifically that the denial caused trial prejudice.").

17. Rule 404(a) provides, with exceptions not relevant here, that
"[e]vidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on
a particular occasion." Fed. R. Evid. 404(a).

                                16
Appellants’ arguments, and in sharp contrast to Pelullo, all
of the evidence introduced to prove the S 1341 count would
have been admissible to prove the S 241 count, though (as
we discuss below) much of it would have been excluded as
cumulative under Rule 403.

Federal Rule of Evidence 404(b) provides that "[e]vidence
of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in
conformity therewith," but, unless inadmissible under
another Rule, is "admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident."18
The Government argues that we need not apply Rule 404(b)
because the evidence relating to the favorable disposition
cases was "intrinsic" to a single case-fixing scheme that
included the to-be-found-guilty cases.

Rule 404(b) "does not extend to evidence of acts which
are ‘intrinsic’ to the charged offense." Fed. R. Evid. 404(b)
advisory committee’s note (citing United States v. Williams,
900 F.2d 823 (5th Cir. 1990)). The distinction between
intrinsic and extrinsic (i.e., "other acts" or "other crimes")
evidence is often fuzzy. One leading treatise calls the
distinction "at best one of degree rather than of kind." 1
Stephen A. Saltzburg et al., Federal Rules of Evidence
Manual 397 (7th ed. 1998). Unfortunately, as the D.C.
Circuit has explained, most circuit courts view evidence as
intrinsic if it is "inextricably intertwined" with the charged
offense (a definition that elucidates little) or if it "completes
the story" of the charged offense (a definition so broad that
it renders Rule 404(b) meaningless). United States v. Bowie,
232 F.3d 923, 927-29 (D.C. Cir. 2000); see also id. at 929
(stating that "it cannot be that all evidence tending to prove
the crime is part of the crime" because that would make
Rule 404(b) "a nullity").

These are some of the pedagogical problems with
understanding intrinsic evidence. But what does it mean in
_________________________________________________________________

18. Rule 404(b) also requires the Government to give the defendant
"reasonable notice" when it plans to introduce evidence of uncharged
misconduct, but Appellants do not suggest that this provision is relevant
to our analysis.

                                17


practice? For our Court, acts are intrinsic when they
directly prove the charged conspiracy. See Gibbs , 190 F.3d
at 217-18. Thus we need not proceed further in this thicket
because it is clear that Appellants’ involvement in fixing
cases in defendants’ favor is not part of the S 241
conspiracy.19

Thus, contrary to the Government’s contention, Rule
404(b) applies here. Appellants’ acts pertaining to the
favorable disposition cases do not directly prove their
conspiracy to violate Pennsylvania citizens’ right to a fair
and impartial hearing in the to-be-found-guilty cases, and
thus by any definition are not intrinsic to theS 241 offense.
In a trial limited to the S 241 count, Appellants would be
charged only with conspiring to engineer guilty verdicts, not
with conspiring to fix cases generally. While the evidence
pertaining to the favorable disposition cases helps prove
Appellants’ broader conspiracy to fix cases, it does not
directly prove that Appellants conspired to get defendants
found guilty. Therefore, we must consider whether the
evidence relating to the favorable disposition cases would
have been admissible to prove the S 241 count under Rule
404(b).

To satisfy Rule 404(b), evidence of other acts must (1)
have a proper evidentiary purpose, (2) be relevant under
Rule 402, (3) satisfy Rule 403 (i.e., not be substantially
more prejudicial than probative), and (4) be accompanied
by a limiting instruction, when requested pursuant to
Federal Rule of Evidence 105,20 that instructs the jury not
_________________________________________________________________

19. Accordingly, we express no view on whether"other acts" evidence
that does not directly prove an element of the charged offense may be
"intrinsic" (and thus exempt from Rule 404(b)) if the other acts were
"inextricably intertwined" with the events underlying the charge, so that
the evidence is necessary for the jury to understand how the offense
occurred or to comprehend crucial testimony. See, e.g., United States v.
Badru, 97 F.3d 1471, 1474 (D.C. Cir. 1996); United States v. Record, 873
F.2d 1363, 1372 n.5 (10th Cir. 1989); United States v. Richardson, 764
F.2d 1514, 1521-22 (11th Cir. 1985); United States v. Weeks, 716 F.2d
830, 832 (11th Cir. 1983) (per curiam).

20. Rule 105 provides: "When   evidence which is admissible as to one
party or for one purpose but   not admissible as to another party or for
another purpose is admitted,   the court, upon request, shall restrict the
evidence to its proper scope   and instruct the jury accordingly." Fed. R.
Evid. 105.

                                  18


to use the evidence for an improper purpose.21 See United
States v. Butch, 256 F.3d 171, 175 (3d Cir. 2001); United
States v. Mastrangelo, 172 F.3d 288, 294-95 (3d Cir. 1999).
"Other acts" evidence satisfies the first two requirements if
it is "probative of a material issue other than character."
Huddleston v. United States, 485 U.S. 681, 685 (1988). In
other words, there must be an articulable chain of
inferences, " ‘no link of which may be the inference that the
defendant has the propensity to commit the crime
charged,’ " connecting the evidence to a material fact.
Becker v. Arco Chem. Co., 207 F.3d 176, 191 (3d Cir. 2000)
(quoting United States v. Morley, 199 F.3d 129, 133 (3d Cir.
1999)); see also United States v. Echeverri, 854 F.2d 638,
644 (3d Cir. 1988) (stating that the "chain of logic must
include no link involving an inference that a bad person is
disposed to do bad acts"). Appellants insist that the only
possible relevance to the S 241 count of the evidence
relating to the favorable disposition cases was to suggest
their inclination to fix cases, an obviously impermissible
purpose under Rule 404(a). We disagree.

In the face of the overwhelming evidence against them,
Cross and the Melogranes attempted to shift the blame to
Judge Scheib. Their main defenses were (1) that they had
no opportunity to dictate how cases were resolved because
Judge Scheib decided every case independently, and (2)
that they performed their various court-related
responsibilities in good faith and did not intend to influence
cases’ outcomes. The evidence pertaining to the favorable
disposition cases eviscerated both of these defenses.
_________________________________________________________________

21. In the current context, however, it makes little sense to give
significant weight in our analysis of admissibility (as distinct from our
harmless error analysis) to the absence of a limiting instruction (even if
it had been requested), since the District Court did not know ex ante
that the evidence should be analyzed as if Cross and the Melogranes
were charged only with violating S 241. Along similar lines, while
ordinarily a trial judge should require a party offering "other acts"
evidence to articulate clearly the chain of inferences leading from that
evidence to a material fact, and should explain on the record why (s)he
admitted or excluded that evidence, see Murray , 103 F.3d at 316, the
District Court here could not have been expected to do so with respect
to evidence that was central to the jointly triedS 1341 count.

                                19


First, the evidence indicated that, contrary to their
protestations at trial, Cross and the Melogranes had an
opportunity to control Judge Scheib’s decisions. For
instance, the evidence that Judge Scheib reached the
decisions preordained (or, at the very least, foreshadowed)
in Nunzio Melograne’s notebook or in the conversations
intercepted by the FBI showed that they decided, or
influenced Judge Scheib to decide, many cases. Indeed,
that Cross and the Melogranes fixed numerous cases in
defendants’ favor suggested that they could routinely obtain
whatever result they desired, and discredited their
contention that Judge Scheib was not subject to their
influence. Their ability to dictate cases’ outcomes showed
that they had the opportunity to get defendants found
guilty, which aided the Government’s allegation that they
conspired to do so. Cf. Echeverri, 854 F.2d at 644 (holding
that testimony that the defendant traveled to Miami to pick
up five kilograms of cocaine, one year before the alleged
conspiracy to distribute cocaine began, was admissible
under Rule 404(b) because his "access to a source" made
him more likely to have "initiated the charged conspiracy").

Second, the evidence showed that Cross and the
Melogranes intended to control cases’ outcomes, and thus
refuted their defense of good faith. "In order to admit
evidence under the ‘intent’ component of Rule 404(b), intent
must be an element of the crime charged and the evidence
offered must cast light upon the defendant’s intent to
commit the crime." United States v. Himelwright, 42 F.3d
777, 782 (3d Cir. 1994). To convict Appellants on the S 241
count, the Government had to show that they had a specific
intent to interfere with their victims’ right to a fair and
impartial hearing. See United States v. Coleman , 811 F.2d
804, 808 (3d Cir. 1987) (stating that S 241 is a specific
intent offense).

Cross and the Melogranes hotly disputed that they
intended to get defendants found guilty, insisting they
participated unwittingly in Judge Scheib’s misconduct.
Indeed, they spent so much effort straining to convince the
jury that they acted in good faith that the prosecutor was
forced to emphasize during his closing argument that"[t]he
issue in this case is not Judge Scheib’s culpability but the

                                20


defendants’ culpability." In addition, the District Court
instructed the jury that "the defendants contend that they
acted in good faith," and that they could not be convicted
on the S 241 count unless the Government proved "intent to
violate civil rights beyond a reasonable doubt," which
"would negate the defense of good faith."

The evidence that Cross and the Melogranes fixed cases
in defendants’ favor refuted their claims of good faith. If
they were acting in good faith, they would not have asked
police officers to leave before testifying. Nor would they
have accepted gifts and favors in exchange for engineering
requested outcomes. This evidence relating to the favorable
disposition cases showed that, rather than acting in good
faith, Cross and the Melogranes intentionally fixed those
cases, which suggested that they intended to fix the to-be-
found-guilty cases as well. Cf., e.g., United States v.
Console, 13 F.3d 641, 658-59 (3d Cir. 1993) (holding that
evidence that defendants submitted fraudulent medical bills
on other occasions was admissible to show that they knew
that the bills at issue in the case were fraudulent and that
they intended to defraud insurance companies by
submitting them); United States v. Dise, 763 F.2d 586, 592-
93 (3d Cir. 1985) (holding that where the defendant, who
was charged with physically abusing severely mentally
retarded patients in violation of 18 U.S.C. S 242, insisted
that he was motivated by safety concerns, evidence that he
made the patients ingest cigarette butts and kicked them in
the buttocks was admissible to prove his intent to harm
them); see also Huddleston, 485 U.S. at 691 (explaining
that where defendant charged with selling and possessing
stolen videotapes denied knowing the tapes were stolen,
evidence that he bought stolen televisions from the person
who sold him the videotapes was admissible to show that
he knew the tapes were stolen). Similarly, trial evidence
showed that Cross and the Melogranes did not
inadvertently get defendants found guilty. See Fed. R. Evid.
404(b) (stating that "other acts" evidence is admissible to
show "absence of mistake or accident"); United States v.
Vega, 285 F.3d 256, 262 (3d Cir. 2002) (holding that
evidence of the defendant’s involvement in a prior drug
conspiracy was admissible to prove "that he did not
unwittingly participate" in the charged conspiracy).
                                21


In addition to demonstrating that Cross and the
Melogranes had the opportunity and intent to violateS 241
by interfering with Pennsylvania citizens’ right to a fair and
impartial hearing, the evidence relating to the favorable
disposition cases helped explain their motives in getting
certain defendants found guilty. The existence of an
overarching scheme can provide circumstantial evidence of
a defendant’s guilt by explaining his motive in committing
the alleged offense. See, e.g., J & R Ice Cream Corp. v.
California Smoothie Licensing Corp., 31 F.3d 1259, 1268-69
(3d Cir. 1994); Government of the Virgin Islands v. Pinney,
967 F.2d 912, 916 (3d Cir. 1992); 1 John W. Strong et al.,
McCormick on Evidence S 190, at 661 (5th ed. 1999). This is
especially important when the charged offense requires
specific intent, see Strong et al., supra, at 665 & n.36,
which (as noted) S 241 does, see Coleman , 811 F.2d at 808.

Cross and the Melogranes engineered favorable
dispositions for defendants in exchange for various gifts
and favors. One of their primary methods of obtaining a
favorable disposition was to inform a police officer that he
could leave before the case in which he was to testify was
called. To ensure the officers’ continued cooperation in their
scheme, Cross and the Melogranes needed to reward them.
As Nunzio Melograne’s notebook attests, they got certain
defendants found guilty to please police officers with whom
they were collaborating. The evidence of the gifts and
favors, and of the officers told to leave court before
testifying, was important to enable the jury to understand
why they wanted to curry favor with the police, and thus
was probative of their motive in fixing cases against
defendants whom police officers did not like.

In sum, each piece of evidence relating to the favorable
disposition cases would have been admissible to prove the
S 241 count under Rule 404(b) because each was"probative
of a material issue other than character."22 Huddleston, 485
_________________________________________________________________

22. Jules Melograne contends that he would have   testified if charged
only with violating S 241, as he would not have   had to explain his
involvement in the favorable disposition cases.   But since the evidence
relating to those cases was admissible to prove   theS 241 count, this
argument is unavailing.

                                22


U.S. at 686. To be admitted, however, the evidence needed
to satisfy the requirements of Rule 403, to which we now
turn.

2. Rule 403

Federal Rule of Evidence 403 provides that "evidence may
be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence." It creates a presumption of
admissibility. United States v. Universal Rehabilitation Serv.
(PA), Inc., 205 F.3d 657, 664 (3d Cir. 2000) (en banc)
(citations omitted). Evidence cannot be excluded under Rule
403 merely because its unfairly prejudicial effect is greater
than its probative value. Rather, evidence can be kept out
only if its unfairly prejudicial effect "substantially
outweigh[s]" its probative value. Fed. R. Evid. 403. As one
example, when evidence is highly probative, even a large
risk of unfair prejudice may be tolerable.

Appellants insist that the evidence relating to the
favorable disposition cases was inflammatory, confusing,
and cumulative with respect to the S 241 count, and thus
would have been excluded under Rule 403. Specifically,
they claim the evidence under S 1341 that they asked police
officers to leave without testifying, and that they received
gifts and favors for fixing cases, was unfairly prejudicial
because it led the jury to want to punish them irrespective
of their guilt on the S 241 count. In addition, they argue
that the sheer volume of the evidence introduced to prove
the S 1341 count created an unacceptable risk of confusing
the jury, and that it unduly delayed the trial, wasted time,
and was cumulative.

The evidence in the S 1341 phase of the case that Cross
and the Melogranes asked police officers to leave before
testifying, and that they received gifts and favors for fixing
cases, was not substantially more prejudicial than
probative.23 Rule 404(b) evidence is especially probative
_________________________________________________________________

23. Appellants’ briefs seem to suggest that evidence threatens "unfair
prejudice" if it is merely undesirable from the defendant’s perspective.

                                23


when the charged offense involves a conspiracy. E.g., United
States v. Mathis, 216 F.3d 18, 26 (D.C. Cir.), cert. denied,
531 U.S. 972 (2000); United States v. Manner, 887 F.2d
317, 322 (D.C. Cir. 1989); United States v. Merkt, 794 F.2d
950, 963 (5th Cir. 1986); United States v. Sampol, 636 F.2d
621, 659 n.23 (D.C. Cir. 1980).24 For this reason, the
Government has broad latitude to use "other acts" evidence
to prove a conspiracy.25 See Mathis, 216 F.3d at 26.

The evidence that Cross and the Melogranes asked police
officers to leave prior to testifying, and accepted gifts and
favors in exchange for arranging favorable dispositions, was
very important because it undercut their main defense--
_________________________________________________________________

However, such a sweeping definition would include"[a]ny evidence
suggesting guilt." United States v. Blyden , 964 F.2d 1375, 1378 (3d Cir.
1992). Instead, "unfair prejudice" means "an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an
emotional one." Fed. R. Evid. 403 advisory committee’s note. Thus our
"focus must be on unfairness in the sense that the proponent would
secure an advantage that results from the likelihood the evidence would
persuade by illegitimate means." Blyden, 964 F.2d at 1378 (emphasis
added).

24. See also Mathis, 216 F.3d at 26 ("In a conspiracy prosecution, the
government is usually allowed considerable leeway in offering evidence of
other offenses ‘to inform the jury of the background of the conspiracy
charged, . . . and to help explain to the jury how the illegal relationship
between the participants in the crime developed.’ ") (footnote omitted)
(quoting United States v. Williams, 205 F.3d 23, 33-34 (2d Cir. 2000));
United States v. Escobar-de Jesus, 187 F.3d 148, 169 (1st Cir. 1999) ("In
a conspiracy case, evidence of other bad acts . . . can be admitted to
explain the background, formation, and development of the illegal
relationship, and, more specifically, to help the jury understand the
basis for the co-conspirators’ relationship of mutual trust.") (citations
omitted).

25. The Fifth Circuit goes further, reasoning that because "Rule 404(b)
evidence is particularly probative where the government has charged
conspiracy," and because "[i]n the context of a conspiracy case, the mere
entry of a not guilty plea sufficiently raises the issue of intent to justify
the admissibility of extrinsic offense evidence," Rule 403 justifies
excluding the evidence "[o]nly when the defendant affirmatively takes the
issue of intent out of the case." United States v. Gordon, 780 F.2d 1165,
1174 (5th Cir. 1986) (citations omitted).

                                24


that they acted in good faith. Moreover, this evidence was
important to enable the jury to understand their motives in
fixing some of the to-be-found-guilty cases to please police
officers, whose cooperation was essential to their overall
scheme of controlling case outcomes and obtaining a quid
pro quo (gifts and favors). This evidence was thus highly
probative of their intent and motive.

On the other side of the balance, the evidence that Cross
and Melograne instructed police officers to leave before
testifying likely angered the jury, as the officers ended up
getting paid, at taxpayers’ expense, for not testifying. And
the evidence that they received various gifts and favors for
effecting favorable decisions likely made the jury more
inclined to want to punish them. But these potentially
prejudicial aspects of the evidence do not render that
evidence inadmissible under Rule 403, as they fall far short
of substantially outweighing their significant probative
value.26 "Rule 403 does not provide a shield for defendants
who engage in outrageous acts, permitting only the crimes
of Caspar Milquetoasts to be described fully to a jury. It
does not generally require the government to sanitize its
case, to deflate its witnesses’ testimony, or to tell its story
in a monotone." United States v. Gartmon, 146 F.3d 1015,
1021 (D.C. Cir. 1998). We cannot agree with Appellants’
argument that highly probative evidence of their intent and
motive would have been kept out under Rule 403 merely
because the evidence posed some risk of unfair prejudice.27
_________________________________________________________________
26. Indeed, courts have admitted far more prejudicial evidence when its
probative value is significant. E.g., United States v. LeMay, 260 F.3d
1018, 1027-29 (9th Cir. 2001) (evidence that the defendant, who was
accused of molesting his two young nephews, had previously molested
other young relatives under similar circumstances was properly admitted
under Rule 403 because it bolstered the victims’ credibility and
corroborated their testimony); United States v. Gartmon, 146 F.3d 1015,
1021 (D.C. Cir. 1998) (evidence that defendant inserted a gun into his
girlfriend’s vagina in an attempt to coerce her into continuing to help
him commit fraud was correctly admitted under Rule 403 because it
demonstrated the defendant’s intent and controlling role in the scheme,
even though it "may have dramatically injured[his] cause").

27. Jules Melograne argues that because he participated in only two of
the to-be-found-guilty cases, the evidence relating to the favorable

                                25


We also cannot accept Appellants’ contention that the
probative value of the evidence relating to the favorable
disposition cases was substantially outweighed by the
extent to which it confused or misled the jury. The District
Court rejected essentially the same argument when it
denied the pretrial severance motion. It explained that "the
conduct charged is distinct as to each conspiracy regarding
the courts affected, the nature of the conduct, and the
defendants involved," and that "[t]here is nothing that
makes it appear that a reasonable jury will not be able to
compartmentalize the evidence against each defendant,
despite the large number of overt acts alleged in Count I."
Not only was the evidence on both counts straightforward
and easy for jurors to "compartmentalize," but the
Government’s presentation of its case also alleviated
whatever slight risk of confusion may have existed. The
Government divided its case into four parts, devoting one
part to background information about how the Statutory
Appeals Court operated and about the roles of Cross and
Nunzio Melograne, and the other three to prongs (a), (b),
and (c) of the indictment (i.e., two parts to the favorable
disposition cases, and one part to the to-be-found-guilty
cases). Before each of the parts which corresponded to a
prong of the indictment, Special Agent Fiore testified and
explained to the jury that the Government was moving on
to a new portion of its case. Because the evidence was so
neatly segmented, the jury was unlikely to have been
confused about which evidence pertained to which count.

Despite all this, although no individual piece of the
evidence was substantially more prejudicial than probative
with respect to the S 241 count, and although none of it
posed a threat of confusing the jury that substantially
_________________________________________________________________

disposition cases was particularly damaging to him. This argument is a
red herring. Conspirators are responsible for their co-conspirators’
reasonably foreseeable acts in furtherance of the conspiracy, e.g.,
Pinkerton, 328 U.S. at 647; Lopez, 271 F.3d at 480, so Jules Melograne
is just as responsible for the to-be-found-guilty cases in which he did not
participate as for those in which he did. Hence there is no reason why
the evidence relating to the favorable disposition cases was more
damaging to him than to his co-conspirators.

                                26


outweighed its probative value, much of it would have been
excluded as cumulative in a trial limited to theS 241 count.
See Fed. R. Evid. 403 (providing that relevant evidence
"may be excluded if its probative value is substantially
outweighed by . . . considerations of undue delay, waste of
time, or needless presentation of cumulative evidence").
"Evidence is ‘cumulative’ when it adds very little to the
probative force of the other evidence in the case, so that if
it were admitted its contribution to the determination of
truth would be outweighed by its contribution to the length
of trial, with all the potential for confusion, as well as
prejudice to other litigants, who must wait longer for their
trial, that a long trial creates." United States v. Williams, 81
F.3d 1434, 1443 (7th Cir. 1996). In a trial on theS 241
count, there would have been no reason to admit evidence
of every overt act alleged with respect to the S 1341 count.
Once sufficient evidence was introduced to inform the jury
that Cross and the Melogranes asked police officers to leave
before testifying so that cases would be dismissed and that
their scheme led to their receiving various gifts and favors,
the District Court would not have admitted more evidence
on these points. Therefore, although each individual piece
of evidence relating to the favorable disposition cases had
significant probative value with respect to the to-be-found-
guilty cases, much of that evidence would have been
excluded as cumulative under Rule 403 in a trial limited to
the S 241 count. But whether this requires us to reverse
Appellants’ S 241 convictions depends on whether it is
highly probable that the cumulative evidence did not
contribute to the jury’s verdict.

3. Harmless error analysis

As with other non-constitutional trial errors, the
improper admission of evidence does not require reversing
a conviction if it is "highly probable that the error did not
contribute to the judgment." United States v. Tyler, 281
F.3d 84, 101 n.26 (3d Cir. 2002). When errors of
constitutional magnitude are raised on direct appeal, we
"must be able to declare a belief that [the error] was
harmless beyond a reasonable doubt." Chapman v.
California, 386 U.S. 18, 24 (1967). Under the"highly
probable" standard, however, "[t]here is no need to disprove

                                27


‘every reasonable possibility of prejudice.’ " United States v.
Copple, 24 F.3d 535, 546 (3d Cir. 1994) (quoting United
States v. Simon, 995 F.2d 1236, 1244 (3d Cir. 1993)); see
also United States v. Mathis, 264 F.3d 321, 342 (3d Cir.
2001), cert. denied, 122 S. Ct. 1211 (2002); United States v.
Sokolow, 91 F.3d 396, 407 (3d Cir. 1996); United States v.
Grayson, 795 F.2d 278, 290 (3d Cir. 1986). While the
Government bears the burden of showing that the error
was harmless, United States v. Adams, 252 F.3d 276, 281
(3d Cir. 2001), we can affirm for any reason supported by
the record. Tyler, 281 F.3d at 101 n.26; Mathis, 264 F.3d
at 342-43; see also Nicini v. Morra, 212 F.3d 798, 805 (3d
Cir. 2000) (en banc); Alexander Hamilton Life Ins. Co. of Am.
v. Gov’t of Virgin Islands, 757 F.2d 534, 547-48 (3d Cir.
1985).

Even if the cumulative evidence prejudiced Appellants to
some extent by distracting the jury or by emphasizing
events that could have aroused the jury’s passions, we can
confidently say that it is "highly probable" that the
superfluous evidence made no difference in the ultimate
verdict of the jury. The evidence supporting theS 241 count
was overwhelming. The Government presented either a
statement by one of the conspirators or a "guilty" entry in
Nunzio Melograne’s notebook to prove each of the to-be-
found-guilty cases. Special Agent Fiore testified that the
defendants whom the notebook designated to be found
"guilty" were in fact found guilty. Assistant District Attorney
Stowe and Petrocelly, the courtroom clerk, also testified
that Cross and the Melogranes got defendants found guilty.
The incriminating evidence that came from Appellants’ own
mouths--the majority of which was admitted in tape-
recorded form--was especially damaging. Indeed,
Appellants’ statements can only be described as shocking.
For instance, in a conversation taped by the FBI, Jules
Melograne bragged to a local police chief about how easily
he could get defendants found guilty: "I told the guys,
anytime they want a, you know, conviction . . . . I make a
phone call down there, and my brother tells the judge, you
know." He added, "[S]omebody give ya a hard time, some
bullshit, yeah, then, uh, you alert my brother down there,
baboom, that’s it." Similarly incriminating statements by
Cross were presented, such as his telling the Judge to "find

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this sucker guilty" when a particular defendant was to be
found guilty, and his responding to one to-be-found-guilty
request by saying about the defendant, "[W]e’ll burn her
ass." Cross I, 128 F.3d at 147.

Because the evidence supporting the S 241 count was so
powerful, it is highly unlikely that the cumulative evidence
relating to the favorable disposition cases contributed to the
judgment. The jury would have gained essentially the same
knowledge from hearing testimony about a limited number
of such cases as it gained from hearing the more extensive
testimony at the trial. Further, we seriously doubt that the
cumulative evidence could have affected the outcome in
light of the devastating evidence supporting theS 241
count. In contrast to Pelullo, where the testimony regarding
the defendant’s Mafia ties was admissible only as to the
reversed count, the most inflammatory evidence presented
at Cross and Melograne’s trial was that pertaining to the
remaining count, which was proved largely by Appellants’
colorfully worded admissions. And unlike the defendant in
Pelullo, Appellants were not collaterally estopped from
challenging the evidence to which they now object.

Moreover, as the District Court recognized when it
rejected Appellants’ severance motion, this is not a case
where the "evidence pertaining to each count was not, and
probably could not have been, segregated at the trial and in
the minds of the jurors." United States v. De Cavalcante,
440 F.2d 1264, 1276 (3d Cir. 1971).28 The evidence on each
count was sufficiently straightforward and distinct that the
jury was unlikely to have been confused by the evidence
relating to the favorable dispositions. In clear contrast to
Pelullo, 14 F.3d at 898, where both the reversed and the
remaining counts alleged the same offense (wire fraud) and
the problem was compounded by the complicated evidence
of financial transactions and bank records in that case,
Appellants were convicted of two very different offenses.
_________________________________________________________________

28. Likewise, the District Court’s reasoning in ruling on the severance
motion, along with the other factors discussed above with respect to the
cumulative evidence, convinces us that it is highly probable that the
jury’s verdict was not affected by the lack of limiting instructions
accompanying the evidence relating to the favorable disposition cases.

                                29


Further, the District Court admonished the jury that it was
not to convict Cross and the Melogranes on one of the
charged offenses merely because it found them guilty of the
other, and " ‘juries are presumed to follow their
instructions.’ " Zafiro v. United States , 506 U.S. 534, 541
(1993) (quoting Richardson v. Marsh, 481 U.S. 200, 211
(1987)).

Finally, we cannot accept Appellants’ arguments that
their respective trial strategies would be significantly
different in a trial limited to the S 241 count. Both Cross
and Melograne insist that they would have called Judge
Scheib as a witness had they not been charged with
violating S 1341. They claim that he could have given
exculpatory testimony on the to-be-found-guilty cases, but
that they did not put him on the stand because of the
damaging testimony he would have given on the favorable
disposition cases. This argument is not plausible. As the
Government points out, Judge Scheib would surely have
invoked his Fifth Amendment privilege against self-
incrimination. The Government had evidence of Judge
Scheib’s involvement in fixing cases, but not enough to
indict him. It is inconceivable that he would have risked
giving the Government the additional evidence it needed.

Conclusion

Under Pelullo, an appellate court’s decision to reverse one
count requires it to reverse the remaining count(s) only if
(1) some of the evidence introduced to support the reversed
count would have been inadmissible at a trial on the
remaining count(s), and (2) the error is not harmless. While
much of the evidence supporting Cross and Melograne’s
S 1341 convictions would have been excluded as cumulative
in a trial on the S 241 count, it is highly probable that this
evidence did not contribute to the jury’s finding that they
violated S 241 by conspiring to deprive Pennsylvania
citizens of their right to a fair and impartial trial. Because
the prejudicial spillover, if any, was harmless error, it is not
reasonably probable that the Pelullo argument would have
prevailed on direct appeal had it been raised. Thus

                                30


appellate counsel was not constitutionally ineffective, and
the District Court’s denial of S 2255 relief is affirmed.

A True Copy:
Teste:

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

                                31
