                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-1999

USA v. Bradley
Precedential or Non-Precedential:

Docket 97-5462




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Filed April 19, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-5462 and 97-5464

UNITED STATES OF AMERICA

v.

WILLIAM F. BRADLEY,

a/k/a FRANKLIN BRADLEY

William F. Bradley,

       Appellant in No. 97-5462

UNITED STATES OF AMERICA

v.

JACKIE R. MATTISON,

       Appellant in No. 97-5464

On Appeal from the United States District Court

for the District of New Jersey

District Judge: Honorable William G. Bassler
(D.C. Crim. Nos. 96-00052-2 and 96-00052-1)

Argued February 17, 1999

BEFORE: GREENBERG, ROTH, and LOURIE,*
Circuit Judges

(Filed: April 19, 1999)
_________________________________________________________________

*Honorable Alan D. Lourie, Circuit Judge of the United States Court of
Appeals for the Federal Circuit, sitting by designation.
       Elizabeth Ferguson (argued)
       Assistant United States Attorney
       George S. Leone
       Assistant United States Attorney
       Faith S. Hochberg
       United States Attorney
       970 Broad Street
       Room 700
       Newark, NJ 07102

        Attorneys for Appellee

       Raymond A. Brown
       Brown & Brown
       One Gateway Center
       Suite 510
       Newark, NJ 07102

        Attorneys for Appellant in
        No. 97-5462

       Thomas R. Ashley
       Ashley & Charles
       50 Park Place, Suite 1400
       Newark, NJ 07102
       Alan L. Zegas (argued)
       Gina L. Mendola
       Sharon B. Kean
       552 Main Street
       Chatham, NJ 07928

        Attorneys for Appellant in
        No. 97-5464

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

The case comes on before this court on the appeals of
William F. Bradley and Jackie R. Mattison following their

                                 2
convictions for certain offenses in the district court at a
two-month trial. We have consolidated their appeals and
dispose of both in this opinion.

Mattison was Chief of Staff for Sharpe James, the Mayor
of the City of Newark, from approximately 1987 through
early 1996, and was also a New Jersey State Assemblyman
during that period. As Chief of Staff, Mattison acted as the
Mayor's liaison between the City's Business Administrator
and its department heads, ran the Mayor's office and
agencies, served as liaison with the city council, boards and
commissions, acted as the Mayor's representative at
business meetings, and served as the Mayor's lobbyist in
Trenton. The grand jury named Mattison's long-term
girlfriend, Janice L. Williams, who was in the hair salon
business, as an unindicted co-conspirator. Mattison and
Williams together owned a house and shared a rented safe-
deposit box. Moreover, Mattison opened bank accounts in
Williams' name in trust for their daughter. During the
course of the investigation in this case the FBI seized
$157,000 in cash from lockboxes in Williams' house and
evidence of that seizure was admitted at the trial.

Bradley was an insurance broker/financial consultant in
the late 1980s, running a business called Bradley Financial
Services from an office in Milburn, New Jersey. Bradley had
known Williams, through Mattison, for about 15 years at
the time of trial. The evidence at the trial demonstrated that
Mattison helped Bradley in his role as a consultant for two
companies, Great West Assurance Company and Corroon &
Black, to obtain and maintain contracts with the City and
the Newark Board of Education. The City chose Great West
as a provider of deferred compensation plans for City
employees, and the Board of Education chose Corroon to
provide insurance with Bradley as its minority
subcontractor.

There was evidence that Mattison provided Bradley with
official favors with respect to those contracts in return for
a series of corrupt payments from Bradley. In particular,
Bradley gave two checks payable to Mattison to him, one
for $4,457.50 in September 1990 and one for $1,640 in
January 1991. Bradley labeled the first check "fees" and
the second "consulting." Mattison deposited the first into

                               3
his personal bank account and cashed the second. Bradley
made three checks payable to Williams for Mattison's direct
and indirect benefit. The checks were for $3,600, dated
October 8, 1991, $3,600, dated November 13, 1992, and
$3,575, dated October 13, 1994. Williams deposited the
first check into a new account she opened with the deposit
but she added no other deposits to the account. She
withdrew the entire balance in a check payable to cash on
February 5, 1992. She deposited the second check into her
personal checking account, and paid certain of Mattison's
bills with it. She deposited the third check into her
checking account and, over the next nine days, made cash
withdrawals from the account for $2,000, $1,000 and $800.

Thus, Bradley made total payments to Mattison of
$16,872.50. Mattison did not reveal the receipt of these
payments on financial forms he was required to file by
reason of his public positions. Williams testified that the
payments Bradley made to her were loans, and Bradley
claimed that the first check he wrote to Mattison was a
repayment of a loan.

The government demonstrated that Mattison referred
Bradley to Great West when it was seeking the contract to
provide the City's deferred compensation plan. Bradley, in
fact, became Great West's consultant. Mattison also
furnished Bradley with information useful to Great West in
seeking the contract and Bradley indicated to Great West
that Mattison would aid it in winning the contract, which
he did. Significantly, the assistance Mattison gave to
Bradley included ensuring that a potential competitor did
not offer a competing deferred compensation plan to the
City.

The evidence showed that the Newark Board of Education
was selecting an insurance plan in 1989-90 to cover its
buildings and other property. Under applicable rules,
Corroon was required to have a minority contractor
participating with it and Mattison vouched for Bradley for
that role. Corroon paid Bradley an unusually high
commission, but Bradley did little work to earn it. A search
of Bradley's office revealed correspondence addressed to
Mattison, some confidential, pertaining to the Board of
Education contract. After Corroon secured the contract in

                                4
1990, Bradley was unable to obtain minority certification
and lacked malpractice insurance necessary for him to
comply with the contract. Nevertheless, through Mattison's
intervention, Corroon decided to pay Bradley his
commission in September 1991, despite initially stopping
payment on a check to him.

Bradley and Williams testified that the various money
transfers related to loans, but the government argued that
their explanations were not convincing. For example,
Williams testified that her loans from Bradley had no terms,
and that there were no written records kept about them.
Bradley testified that his first check to Mattison was
repayment for a loan Mattison had made to him to
purchase a co-op, but evidence showed that he borrowed
money for that purpose from a woman he was dating. While
Bradley stated that he wrote "consulting" on that check so
he could deduct it from taxes, he had not filed tax returns
since 1989, leading to the tax evasion conviction in the
case. Moreover, Bradley was in financial difficulties during
this period and thus it is not likely that he would have been
in a position to lend Williams money. Furthermore, while
Williams stated the loans were for her hair salon business,
the business was not in serious trouble, and she had funds
available to her from a City program and in her own
accounts. Also, in 1993 when Bradley sought a minority
business certification he did not indicate that he had loans
receivable as assets.

A grand jury returned a 26-count superseding indictment
against Mattison and Bradley. It charged both in counts
one through 19 with: conspiracy to accept corrupt
payments; accepting money to influence and reward; a
scheme to extort money under official right, violating the
Hobbs Act; use of a facility in interstate commerce to accept
a benefit not allowed by law to influence the performance of
Mattison's duties contrary to New Jersey law; and use of
mail and wire fraud to deprive the citizens of Newark and
New Jersey of their right to honest services of a public
official. It charged Bradley separately in seven counts for
three offenses: making a false declaration before the grand
jury; false use of a social security number; and tax evasion
from 1989-1993.

                                5
The court dismissed three jurors during and after the
summations at the trial. The court dismissed the first,
Moldow, to attend a family funeral. The court dismissed the
second, Jefferson, one day later, for sleeping. The court
dismissed the third because the juror had vacation plans.

During the early stages of the trial, jurors mentioned that
Jefferson had an odor problem and the court moved her
seat so she was further away from the other jurors. Later
the Assistant United States Attorney told the court he
thought that Jefferson was eating paper. The jurors,
however, did not make any subsequent complaints
regarding odor problems or any other issue concerning
Jefferson. When near the end of the trial Moldow brought
her request to leave the jury to the court, she asked if the
court would dismiss the other alternates. At that time the
court asked her if there was something she wanted to tell
it. Moldow then stated that she thought Jefferson, who was
an alternate, was not a good listener and had made up her
mind with respect to the outcome of the case. The court
also asked if the odor issue continued. The court told the
parties about the situation, and the court placed Moldow
under oath for questioning.

Moldow stated that near the start of trial, she had
overheard Jefferson during lunch mutter a comment about
making up her own mind and not listening to the court.
Moldow said the remark shocked her and that she asked
Jefferson what she had said, but that Jefferson denied
saying anything.

The court then told the parties that it had noticed
Jefferson sleeping. It then swore in one of its law clerks,
who testified that during the government's closing, she had
noticed Jefferson sleeping. The defendants had the
opportunity to cross-examine the clerk but did not do so.
The court expressed its desire to question Jefferson, but the
defendants opposed that procedure. The court then decided
to delay questioning her in recognition of her status as an
alternate.

Ultimately the court dismissed the juror who had
vacation plans. The court then stated that it had observed
that Jefferson was not paying attention during the

                                6
defendants' summation. The defendants at that time
changed their position, and urged the court to examine
Jefferson. The court offered to voir dire all jurors about the
comment Moldow overheard, but it did not do so. After
further discussion, the court dismissed Jefferson without
questioning her. We understand that if the court had not
excused Jefferson she would have deliberated in this case.
Eventually the jury convicted both defendants on all
counts.

The court calculated Mattison's guidelines range at 33-41
months, and it sentenced him to 41 months imprisonment
on each count to run concurrently, three years' supervised
release on each count, also to run concurrently, 400 hours
of community service, a fine of $25,000, and special
assessment of $950.

Bradley's guidelines range was 46-57 months, and the
court sentenced him to concurrent 46-month custodial
terms on each count, to three-year terms of concurrent
supervised release, a fine of $7,500, and a special
assessment of $1,300.

II. DISCUSSION

A. Whether the district court abused its discretion when it
   allowed the government to adduce evidence that
   $157,000 was found in Williams' attic to impeach her
   testimony.

On this appeal Mattison has filed briefs in which Bradley
has joined. The defendants argue that evidence of the
$157,000 recovered from Williams was "highly
inflammatory" and "unfairly prejudicial" and that the jury
could not "compartmentalize" the evidence even with the
court's limiting instructions. Brief at 22-23. They argue
that while no effort was made to link the cash to Mattison,
the evidence "powerfully suggested" that Mattison had
something to do with it, as it was found in Williams' home.
Id. at 23.

The government called Williams as a witness following a
grant of immunity to her. Testimony demonstrated that the
FBI had found the $157,000 in cash in lockboxes in the

                                7
attic of her house during a November 9, 1995 search made
in connection with the investigation against Mattison and
Bradley. Williams claimed that she had found the money in
her father's house a year after his death, on approximately
October 24, 1995, and that she had not put the money in
a bank because she was waiting to discuss the matter with
a sister. The government stated that the evidence was
admissible to impeach Williams' testimony that she had
lent money she obtained from Bradley's first loan to her, in
1991, for $3,600, to her father. In this regard, the
government suggested that if her father had had so much
money, he would not have borrowed from Williams. The
government also contended that evidence of the money
impeached her testimony that Bradley's three payments to
her were loans as Williams did not repay Bradley at the
time she found that money. Moreover, it argued that the
evidence demonstrated that Williams' grand jury testimony
that she withdrew $3,500 in cash in February 1992 for her
father was false, and had to be changed at trial where
Williams said she gave some money to her father and used
some money for personal bills.

The government had a legitimate reason to offer the
evidence to attack Williams' credibility. The court gave
limiting instructions to the effect that the evidence with
respect to the $157,000 was admitted only to impeach
Williams, and that the prosecution did not suggest that
there was a connection between the cash, the defendants,
and any crime.

The court's decision to admit the evidence was proper.
See Carter v. Hewitt, 617 F.2d 973, 972 (3d Cir. 1980)
("prejudice" entails a determination on "an improper basis
of decision"). In making a Fed. R. Evid. 403 determination,
the district court is required to balance the probative value
of evidence against its prejudicial effect. The district court
"must appraise the genuine need for the challenged
evidence and balance that necessity against the risk of
prejudice to the defendant." Government of the Virgin
Islands v. Archibald, 987 F.2d 180, 186 (3d Cir. 1993)
(internal quotation marks and citations omitted). Here
evidence regarding the $157,000 had a legitimate purpose
and there was not "an overwhelming probability" that the

                                8
jury would have been unable to follow the limiting
instructions, or "a strong likelihood" that the evidence
would be "devastating" to the defendants. United States v.
Vaulin, 132 F.3d 898, 901 (3d Cir. 1997). In the
circumstances, the court did not abuse its discretion in
admitting it.

B. Whether it was proper for the court to dismiss Jefferson
   for sleeping without a voir dire of her.

The defendants argue vigorously that the court erred in
dismissing Jefferson. We review the court's actions in this
regard for an abuse of discretion. See United States v.
Bertoli, 40 F.3d 1384, 1392 (3d Cir. 1994).

The court had a legitimate basis to dismiss Jefferson.
Under Fed. R. Crim. P. 24(c), a court may dismiss jurors if
they "become or are found to be unable or disqualified to
perform their duties." The defendants argue that the court's
stated reason for dismissing Jefferson, that she was
sleeping, was only a "pretext," and that the court and the
government had singled her out and were looking for ways
to remove her. But the record shows that the court
dismissed her for inability to serve as a juror, and that the
court had sufficient information to support the dismissal
and so did not have to voir dire her or the other jurors with
respect to this point. See, e.g., United States v. Bertoli, 40
F.3d at 1395; United States v. Reese, 33 F.3d 166, 173 (2d
Cir. 1992).

The defendants downplay the fact that the court itself
noticed Jefferson sleeping: first, when it overheard someone
snoring loudly during the government's summation, then,
when it observed Jefferson snoring during the defendants'
summation; thus, its dismissal was not solely based on its
law clerk's observations. The court could take judicial
notice of the conduct of a juror in open court. See, e.g.,
United States v. Carter, 433 F.2d 874, 876 (10th Cir. 1970).
Moreover, the court did not base its decision on ex parte
communications with its clerk. Rather, it put the clerk on
the stand to be cross-examined. The defendants refused to
question the clerk, and now argue that this is because they
did not want to risk attacking the court through its
extension, the clerk. Yet the defendants' attorneys were

                                9
quite willing to argue with the court itself regarding its
observation that Jefferson was sleeping, and were willing to
question whether the court had observed other jurors
sleeping as well. Furthermore, when the court initially
offered to voir dire Jefferson the defendants objected to that
procedure, stating that at that point she should not be
singled out, and that there was no basis for the inquiry.

After the summations, the situation changed. At that
point the defendants argued that Jefferson should be
examined, along with all other jurors, concerning her
potentially prejudicial comment which Moldow overheard.
The court offered to do so but after further discussion
decided to dismiss Jefferson finding that there was no
reason to question her based upon Moldow's testimony of
April 16, 1999 because it was clear that Jefferson had not
been attentive during the closings and should be dismissed
on that basis. We find that the court's procedure was not
an abuse of discretion. See United States v. Console, 13
F.3d 641, 669 n.34 (3d Cir. 1993).

C. Whether the court properly instructed the jury on the
   Hobbs Act.

The defendants challenge the court's instructions to the
jury on the Hobbs Act Count 6 charge for extortion under
color of official right, 18 U.S.C. SS 1951(a)(b)(2) and (3) and
2. They argue that the court improperly refused to charge
that in a non-campaign case like this one, an express
agreement must be shown.1 We exercise plenary review on
this issue. See Ryder v. Westinghouse Elec. Corp., 128 F.3d
128, 135 (3d Cir. 1997); United States v. Zehrbach, 47 F.3d
1252, 1260 (3d Cir. 1995).

The court's instruction was as follows:

        So if a public official agrees explicitly or implicitly to
       take or withhold some action for the purpose of
       obtaining money for someone else, that constitutes
_________________________________________________________________

1. Campaign contribution cases present special problems because
persons who hope that their interests will receive favorable treatment
from elected officials legitimately may make campaign contributions to
those officials. See McCormick v. United States, 500 U.S. 257, 272-73,
111 S.Ct. 1807, 1816 (1991).

                                10
       extortion. The public official need not fulfill the promise
       of the payor to do or not to do an official act, although
       the official's failure to influence may be considered
       along with all of his conduct in determining whether or
       not he possessed the intent to commit the crime. The
       crime is completed at the time when the public official
       knowingly accepts the benefit in return for his
       agreement to perform or not to perform an act related
       to his office. Moreover, the government does not have to
       prove that there was an express promise on the part of
       the public official to perform a particular act at the time
       of the payment.

       In sum then, it is sufficient if the public official
       understands that he is expected, as a result of the
       payment, to exercise particular kinds of influence or to
       do certain things connected with his office as specific
       opportunities arise.

App. at 6269-70 (emphasis added).

As the government argues, this instruction complies with
the most recent Supreme Court holding on the issue of
whether an agreement is required for conviction under the
Hobbs Act. In Evans v. United States, 504 U.S. 255, 268,
112 S.Ct. 1881, 1889 (1992), the Supreme Court held that
"the [g]overnment need only show that a public official has
obtained a payment to which he was not entitled, knowing
that the payment was made in return for official acts," in
order to establish extortion under color of official right
under the Hobbs Act. Significantly, the Court "reject[ed]
petitioner's contention that an affirmative step is an
element of the offense of extortion `under color of official
right' and need be included in the instruction." Id.

Several courts of appeals also have turned to Justice
Kennedy's concurrence in Evans to hold specifically that no
explicit promise is required. In Evans, Justice Kennedy
wrote that "[t]he official and the payor need not state the
quid pro quo in express terms, for otherwise the law's effect
could be frustrated by knowing winks and nods." Id. at
274, 112 S.Ct. at 1892 (concurring opinion). The Court of
Appeals for the Second Circuit, for example, drawing upon
Justice Kennedy's concurrence, has held that, in non-

                               11
campaign cases, "proof of an explicit promise to perform the
official acts in return for the payment is not required."
United States v. Delano, 55 F.3d 720, 731 (2d Cir. 1995);
see also United States v. Hairston, 46 F.3d 361, 365 (4th
Cir. 1995) (quid pro quo need not be express; government
only must show that public official obtained payment to
which he was not entitled knowing that payment was in
return for official act). Here, the government proved the
quid pro quo relationship, though it did not show and did
not have to show that the defendants had an express
agreement.

The defendants point to cases from the Court of Appeals
for the Eleventh Circuit to support their position. Brief at
36-37. In United States v. Martinez, 14 F.3d 543, 552-54
(11th Cir. 1994), the court of appeals held that the district
court had failed to instruct the jury on the quid pro quo
relationship, which it construed to mean "explicit promise."
Yet it noted that in Evans the Supreme Court, in discussing
an earlier Hobbs Act case, stated that the jury instruction
satisfied "the quid pro quo requirement of McCormick
because the offense is completed at the time when the
public official receives a payment in return for his
agreement to perform specific official acts[.]" Martinez, 14
F.3d at 553 (quoting Evans, 504 U.S. at 268, 112 S.Ct. at
1889). In McCormick, "proof of a quid pro quo" is defined as
a "promise of official action or inaction in exchange for any
payment or property received." McCormick v. United States,
500 U.S. 257, 266, 111 S.Ct. 1807, 1813 (1991). The Court
did not in McCormick, or later in Evans, require an
"express" or "explicit" promise in cases such as this
involving payments outside of a campaign contribution
context. Nevertheless, in United States v. Davis, 30 F.3d
108, 109 (11th Cir. 1994), the court of appeals adhered to
Martinez.

We will not follow the Court of Appeals for the Eleventh
Circuit as in our view, as Justice Kennedy explained, a
conclusion that in a Hobbs Act case the government has to
demonstrate that the public official made an express
promise to perform a particular act and that "knowing
winks and nods" are not sufficient would frustrate the act's
effect. Evans, 504 U.S. at 274, 112 S.Ct. at 1892 (Kennedy,

                               12
J., concurring). In the circumstances, we conclude that the
court's instruction was correct.

D. Defendants' other arguments.

The defendants raise the following additional arguments:

       (1) The district court's erroneous interpretation of the
       Wire and Mail Fraud Act and improper jury charge
       violated defendants' federal constitutional rights to due
       process and to a fair trial;

       (2) The district court's erroneous interpretation of the
       New Jersey gratuity law and the improper fashioning of
       a jury charge based upon an incorrect legal analysis
       violated defendants' federal constitutional right to due
       process and to a fair trial;

       (3) In violation of defendant Mattison's federal
       constitutional right to due process and to a fair trial,
       the district court erred in failing to sever the case
       against defendant Mattison from the case against
       defendant Bradley;

       (4) Defendant Mattison's federal, constitutional r ights
       to due process and to a fair trial and the rights of
       defendant Mattison under the Federal Sentencing
       Guidelines were violated by the district court's failure
       to grant him a downward departure at the time of
       sentencing;

       (5) Defendant Mattison's federal constitutional right to
       due process and to a fair trial and the rights of
       defendant Mattison under the Federal Sentencing
       Guidelines were violated by the imposition of a two-
       point increase under an alleged multiple bribe theory;

       (6) Federal constitutional rights to due process a nd to
       a fair trial were violated by the district court's failure to
       grant defendants' motion for judgment of acquittal and
       motion for a new trial.

We have reviewed these contentions and conclude that they
are clearly without merit and thus we reject the contentions
without further discussion.

                                  13
III. CONCLUSION

For the foregoing reasons we will affirm the judgments of
conviction and sentence entered July 16, 1997.

A True Copy:
Teste:

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

                               14
