                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2004

USA v. Wright
Precedential or Non-Precedential: Precedential

Docket No. 03-1800




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PRECEDENTIAL                                JENNIFER-KATE AARONSON
                                            Potter, Carmine & Hodas
       UNITED STATES COURT OF               840 North Union Street
              APPEALS                       P.O. Box 514
        FOR THE THIRD CIRCUIT               Wilmington, DE 19899

                No. 03-1800                 Counsel for Appellant
               ____________
                                            RICHARD G. ANDREWS
   UNITED STATES OF AMERICA                 Office of the United States Attorney
                                            1007 Orange Street
                     v.                     Suite 700
                                            Wilmington, DE 19801
         LAWRENCE W. WRIGHT
                                            Counsel for Appellee
              Lawrence Wright,                       _________________
                        Appellant
                                                  OPINION OF THE COURT
          ____________________                     ____________________

 ON APPEAL FROM THE UNITED                  ALITO, Circuit Judge:
    STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE                        This is an appeal from a final
                                            judgment in a criminal case. Lawrence W.
       District Court Judge: Honorable      Wright was convicted and sentenced for
               Gregory M. Sleet             conspiring to transport stolen property in
             (D.C. No. 01-cr-63)            interstate commerce, transporting stolen
                                            property in interstate commerce, money
  Submitted Under Third Circuit LAR         laundering, and making false statements
               34.1(a)                      in a matter within the jurisdiction of the
           January 22, 2004                 federal government. All of these offenses
                                            related to a scheme to steal money from
   Before: ALITO and CHERTOFF,              the Church that the defendant served as
   Circuit Judges, and DEBEVOISE,*          pastor. We affirm.
              District Judge
     (Opinion Filed: April 6, 2004)                             I.

                                                   Lawrence W. W right was the pastor
   *
    The Honorable Dickinson R.              of the New Mt. Olive Baptist Church (“the
Debevoise, District Judge of the United     Church”) in Wilmington, Delaware. The
States District Court for the District of   Church maintained multiple bank
New Jersey, sitting by designation.         accounts. One of these, the “General
Account,” was controlled and reviewed by            Wilmington. The defendant immediately
Church officials, but another, called the           deposited the check into the Fire Account
“Fire Account,” was under the defendant’s           at the Sun National Bank. After the check
sole control. The intended purpose of the           was deposited, it was sent to a third-party
“Fire Account” was to help the needy.               processor, then to First Union Bank, and
                                                    then across state lines to the Federal
        Al O. Plant, Sr., (“Plant”) was an          Reserve Ban k in P hiladelphia ,
elected member of the Delaware House of             Pennsylvania, from which it was returned
Representatives.        Under a Delaware            to Wilmington Trust Co.
Department of Transportation program
that was popularly called the Suburban                     After these funds were deposited in
Street Funds (“SSF”) program, each                  the Fire Account, the defendant began to
elected state representative was allocated          disburse them for purposes having nothing
a share of money to spend on                        to do with transportation or assisting the
transportation-related projects in the              needy. He caused $8,500 to be transferred
representative’s district. Plant had control        into his personal account, and he caused
over the funds for the City of Wilmington.          $8,500 to be transferred into Plant’s
Plant ceded control of his SSF funds to the         personal account. In early August, the
City, and in return, the City created an            defendant wrote himself a check for
account with an equivalent amount of                $8,000 on the Fire Account and deposited
money that would be spent on non-profit             the check in his personal account. Later in
human services projects as Plant                    the month, he arranged for transfers of
requested. For purposes of simplicity, we           $8,000 and $3,500 from the Fire Account
will refer to the latter funds as Plant’s SSF       into Plant’s personal account.
funds.
                                                            In May or June of 1999, Plant
       According to the government, Plant           enticed Delaware State Representative
made SSF moneys available to the                    Helen Keeley to make $50,000 of her SSF
defendant, and the defendant used these             money available to him. In October 1999,
funds for his own personal use and for              the defendant wrote to Plant and requested
bribes for Plant. In May 1999, Wright               $35,000 to “completely construct a new
wrote to Plant requesting $50,000 for a             sidewalk” in front of the Church. A short
“bus being used for seniors’ transportation         time later, Keely, at Plant’s request, signed
to the doctor, clinic, hospital, and trips          a letter authorizing the transfer of $50,000
during the day.” Plant then contacted the           from her SSF to the Church. When the
City of Wilmington and requested that it            defendant received the check, he deposited
write a check for $49,449 from his SSF to           it in the Fire Account, and this check, like
Wright. The City drew a check for                   the previous check drawn on the
$49,449 payable to Wright on an account             Wilmington Trust Co., was cleared
at the Wilmington Trust Company in                  through the Federal Reserve Bank in

                                                2
Philadelphia.                                      to himself. In addition, during a period of
                                                   approximately five weeks after the deposit
       Although the money from                     of the money in the Fire Account, the
Representative Keeley’s SSF funds was              defendant wrote other checks on that
supposed to be used to construct a                 account for himself and family members
sidewalk, no repair or reconstruction of the       totaling $22,100.
sidewalk was ever done. Instead, money
from the Fire Account was again diverted                  In September 2000, the defendant
to the defendant and Plant. In November            was interviewed by two FBI agents.
1999, the defendant drew an $8,000 check           During one interview, he said that the
on the Fire Account payable to Plant, and          Church had received only $99,449 of SSF,
he arranged for the transfer of another            as opposed to the $149,449 that had
$8,000 from that account to Plant’s                actually been received. He also told the
account. During the month of November,             FBI agents that the Church had used the
the defendant wrote himself approximately          part of the proceeds from the first
$21,000 in checks on the Fire Account. In          Wilmington Trust Co. check (for $49,449)
December 1999, he wrote a check for                to make a down payment on a new bus and
$1,500 from the Fire Account to a body             that the rest had been used for incidental
shop to pay for repairs to his Mercedes.           Church expenses or a reserve account. He
                                                   claimed that the remaining $50,000 had
        In July 2000, Plant took action in         been used to repair the Church, to
response to a request from the defendant           refurbish an old bus, and to initiate a
for money to repair a house so that it could       senior citizen’s program. The next day,
be used as an outreach ministry. Plant             the defendant was again interviewed by
authorized $50,000 to be paid from his             two agents and said that the Church had
SSF to the Church. Once again a check              used the $49,499 check for its reserve
was drawn on the Wilmington Trust Co.,             account and for day-to-day Church
the defendant deposited the check in the           expenses and that the Church had used the
Fire Account, and the check was cleared            $50,000 check to buy computers, to
through the Federal Reserve Bank in                overhaul the bus, and to defray various
Philadelphia.     After this money was             other Church costs.
deposited in the Fire Account, the
defendant transferred funds from that                      On March 25, 2001, a grand jury
account to himself and to Plant. He wrote          returned a 19-count indictment against the
Plant a check for $5,600, and on several           defendant, charging him with one count of
occasions he wrote checks to himself,              conspiring to transport stolen property in
deposited the checks in his personal               interstate commerce, in violation of 18
account, and then used that account to             U.S.C. §371; three counts of causing the
write checks for Plant in the same amount          transportation of stolen property in
as the checks that he had originally written       interstate commerce (one count for each of

                                               3
the three checks for SSF funds), in                  help him pay his gambling debts. The
violation of 18 U.S.C. §§ 2314 and §2(b);            defense argued that while this theft was
four counts of money laundering, in                  wrong, it was not a federal crime. The
violation of 18 U.S.C. §1956(a)(1)(B)(I);            jury found the defendant guilty on all
nine counts of bribery, in violation of 18           counts.
U.S.C. §666; and two counts of making
false statements to the FBI, in violation of                The defendant filed a post-trial
18 U.S.C. §1001.                                     motion for judgment of acquittal in which
                                                     he renewed the arguments that he had
       The defendant moved to dismiss the            made in his earlier motion to dismiss. The
counts of the indictment that involved the           District Court granted the motion with
transportation of stolen goods in interstate         respect to bribery counts1 but refused to
commerce. He argued that those counts                dismiss the other counts.
were defective because they did not allege
that he knew that the stolen property                       The District Court sentenced the
would travel in interstate commerce. See             defendant to 51 months of imprisonment.
United States v. Wright, 194 F.Supp.2d               In doing so, the District Court rejected the
287, 291 (D. Del. 2002). He also urged               defendant’s request for a downward
the District Court to dismiss the bribery            departure based on his charitable work.
counts on the ground that they did not               The defendant then took this appeal.
implicate any federal interest. Id. at 296.
                                                                          II.
        The District Court denied the
motion to dismiss. The Court ruled that                                   A.
the interstate element of 18 U.S.C. §2314
is purely jurisdictional and that therefore it              The defendant first argues that the
was not necessary for the defendant to               evidence at trial was insufficient to prove
have known that the property was going to            that he willfully caused another person to
travel in interstate commerce. Id. at 290-           violate 18 U.S.C. §2314 (transportation of
95. The Court also held that it could not            stolen items in interstate or foreign
conclude at that juncture that a sufficient          commerce). The defendant contends that
federal interest was not implicated, but it          a person cannot willfully cause property to
invited counsel to raise the issue again             be transported in interstate commerce
after trial. Id. at 295-301.

       The defendant was then tried before              1
                                                          Neither the propriety of the District
a jury. During the trial, the defendant
                                                     Court’s partial inquiry into the facts
claimed that he had stolen money from the
                                                     relating to this issue prior to the trial nor
Church to repay cash loans from Plant,
                                                     its ultimate decision on this issue is
who had loaned the defendant money to
                                                     before us in this appeal.

                                                 4
without knowing that the property will be         converted or taken by fraud.” Thus, the
transported in interstate commerce, and he        text of § 2314 is alone sufficient to show
maintains that the evidence does not show         that knowledge of the interstate commerce
that he had such knowledge. We reject             element is not necessary.
this argument because the defendant’s
interpretation of 18 U.S.C. §2314 and 18                 Moreover, even if the statutory text
U.S.C. § 2(b) is incorrect.                       were less clear, there would be strong
                                                  reasons to doubt that Congress intended to
                       1.                         require such proof. For one thing, very
                                                  few lay people understand the breadth of
        It is clear that a defendant who          the terms “in interstate or foreign
personally transports stolen property in          commerce,” and therefore except in the
interstate commerce may be convicted of           most obvious cases – i.e., where the
violating 18 U.S.C. § 2314 without proof          property actually crosses state lines or an
that the defendant knew that the                  international border – proof of such
transportation was in interstate commerce.        knowledge would be very hard. It is
Section 2314 provides in relevant part:           unlikely that Congress intended to create
                                                  such an obstacle.
       Whoever            transports,
       transmits, or transfers in                         More important, there is no
       i n te r s t a t e o r f o r e i g n       apparent reason why Congress would have
       commerce any goods, wares,                 wanted to demand proof of such a state of
       merchandise, securities or                 mind.      Such proof is certainly not
       money, of the value of                     constitutionally required.          Proof of
       $5,000 or more knowing the                 interstate or foreign transport is required to
       same to have been stolen,                  ensure that prosecutions under 18 U.S.C. §
       converted or taken by fraud                2314 reach only conduct that Congress
       ...                                        may prope rly r egula te und er the
       Shall be fined under this                  Commerce Clause, the constitutional
       title or imprisoned not more               provision under which § 2314 was
       than ten years, or both.                   enacted, but the Commerce Clause
                                                  empowers Congress to regulate interstate
18 U.S.C. § 2314 (emphasis added).                and foreign commerce regardless of
                                                  whether the persons engaging in that
       This language does not require             conduct realize that it falls within the
proof that the accused knew that the              scope of the Clause.
transportation of the stolen property was
“in interstate or foreign commerce.”                    There is also no apparent policy
Rather, the only requisite knowledge is           reason for requiring proof that a person
knowledge that the property was “stolen,          charged under § 2314 knew that the

                                              5
property was transported in interstate or                                2.
foreign commerce.           The presence or
absence of such knowledge seems to have                     The defendant argues, however,
little relation to either the blameworthiness       that knowledge of transportation in
of the conduct or the harm that it produces.        interstate commerce is nevertheless
                                                    demanded when a defendant is charged
        Finally, case law strongly supports         under 18 U.S.C §2(b) with causing another
the conclusion that § 2314 does not                 person to violate 18 U.S.C. §2314. The
necessitate proof that the defendant knew           defendant first notes that a person is guilty
that the interstate element was present.            as a principal if the person “willfully
Numerous courts of appeals have held that           causes an act to be done which if directly
the portion of § 2314 at issue here does not        performed by him or another would be an
require proof that a defendant knew that            offense against the United States.” 18
the transportation was in interstate                U.S.C. § 2(b)(emphasis added). In the
commerce or even that transportation in             present case, the defendant contends, the
interstate commerce was reasonably                  “act” in question is the transportation of
foreseeable. See United States v. Lack,             stolen goods in interstate commerce, and
129 F.3d 403, 410 (7 th Cir. 1997); United          he argues that a person cannot “willfully”
States v. Scarborough, 813 F.2d 1244,               cause a person to transport goods in
1245-46 (D.C.Cir.1987); United States v.            interstate commerce without knowing that
Lennon, 751 F.2d 737, 741 (5th Cir.1985);           the goods will travel in interstate
United States v. Newson, 531 F.2d 979,              commerce. This argument is also wrong.
981 (10th Cir. 1976); United States v.
Ludwig, 523 F.2d 705, 706-08 (8th                           First, the language of 18 U.S.C.
Cir.1975); United States v. Powers, 437             §2(b) does not require the conclusion that
F.2d 1160, 1161 (9th Cir.1971); United              the defendant reaches. Suppose, for
States v. White, 451 F.2d 559, 559-60 (6th          example, that a defendant willfully causes
Cir.1971); United States v. Mingoia, 424            another person to take stolen goods from
F.2d 710,713(2d Cir. 1970). Cf. United              point A to point B without realizing that
States v. McElroy , 644 F.2d 274, 277 (3d           these points are in different states. In that
Cir. 1981)(stating that “[m]ost opinions            situation, the defendant may be viewed as
hold that the interstate commerce                   having willfully caused another person to
requirement is satisfied if, after the              perform an act (transporting the goods
defendant negotiates a forged check, it             between points A and B) “which if directly
travels interstate in the bank collection           performed by [the defendant] would be an
process”). For all of these reasons, we             offense against the United States.” See
hold that 18 U.S.C. §2314 itself does not           United States v. Feola, 420 U.S. 671, 687
require that the accused know or intend for         (1975).       The defendant’s lack of
the stolen property to be transported across        knowledge that points A and B are in
states lines.                                       different states would not alter this

                                                6
conclusion.                                         not concern 18 U.S.C. § 2314, its
                                                    reasoning seems fully applicable in the
        Second, since a defendant who is            present situation.
charged with personally transporting stolen
property in interstate commerce need not                   Looking beyond the decisions of
know that the transportation is in interstate       our own Court, we see that no fewer than
commerce, it is difficult to see why                six other courts of appeals have rejected
Congress would have wanted to require               the precise argument that the defendant
such knowledge in a case in which a                 now advances. See Lack, 129 F.3d at 409-
defendant is accused of causing another             10; Scarborough, 813 F.2d at 1245-46;
person to commit the same offense.                  Lennon, 751 F.2d at 741; Newson, 531
        Third, precedent strongly supports          F.2d at 980-81; Ludwig, 523 F.2d at 706-
this reading. Although our Court has not            08; Powers, 437 F.2d at 1161.
decided the precise issue presented here, in
United States v. Gumbs, 283 F.3d 128, 131                  We are aware that the First Circuit
(3d Cir. 2002), we addressed a very similar         has suggested in dicta that the requirement
question. In Gumbs, the defendant was               of willfulness in 18 U.S.C. § 2(b) might
convicted of causing a false claim to be
made or presented to a federal department
in violation of 18 U.S.C. § 2(b) and § 287.
                                                    18 U.S.C. § 111 without knowing that
T h e d e f e n d a n t a rg u e d that th e
                                                    the victim of the assault is a federal
“willfulness” element in 18 U.S.C. § 2(b)
                                                    officer, 420 U.S. at 676-86, the Court
meant that he could not be convicted
                                                    went on to reject the proposition that, in
without proof that he knew that the claim
                                                    order to be guilty of conspiring to violate
would be presented to a federal
                                                    18 U.S.C. § 111, a conspirator must
department, but we disagreed. We noted
                                                    know that the intended victim was a
that “the Supreme Court has held that a
                                                    federal officer. Id. at 686-96.
defendant generally need not be aware of
                                                            In Yermian, the defendant was
the existence of a jurisdictional element to
                                                    convicted under 18 U.S.C. § 1001, which
be guilty of a federal offense.” Id. at 131
                                                    makes it a crime to “knowingly and
(citing United States v. Feola, 420 U.S. at
                                                    willfully” make false, fictitious, or
672-73, and United States v. Yermian, 468
                                                    fraudulent statements in a matter within
U.S. 63, 75 (1984)).2 Although Gumbs did
                                                    the jurisdiction of a federal department
                                                    or agency. The Court rejected the
                                                    argument that conviction under this
   2
     In Feola, the defendant was                    statute necessitates proof that the
convicted of violating 18 U.S.C. §371,              defendant knew that the statements were
by conspiring to assault a federal officer,         made in a matter within the jurisdiction
in violation of 18 U.S.C. §111. After               of a federal department or agency.
first holding that a defendant may violate

                                                7
demand proof that a defendant charged              of the elements of the offense.
under 18 U.S.C. § 2314 either knew or
should have reasonably foreseen that the                   Turning to the question whether
property would be transported in interstate        the evidence was sufficient to establish
commerce. United States v. Leppo, 177              that Pereira caused the check to pass in
F.3d 93, 96-97 (1 st Cir. 1999). However,          interstate commerce, the Court wrote:
the Leppo court did not actually decide
whether such proof was needed because it                  When Pereira delivered the
found that the record was sufficient to                   check, drawn on an out-of-
show that the defendant intended for the                  state bank, to the El Paso
property to pass in interstate commerce.                  bank, for collection, he
Id. at 97. Furthermore, we believe that                   “caused” it to be transported
the Leppo court read too much into the                    in interstate commerce. It is
passage from Pereira v. United States, 347                common knowledge that
U.S. 1 (1954), on which its dicta was                     such checks must be sent to
based.                                                    the drawee bank fo r
                                                          collection, and it follows
       In Pereira, a defendant, Pereira, was              that Pereira intended the El
convicted of causing a check procured by                  Paso bank to send this check
fraud to be transported in interstate                     across state lines.
commerce, in violation of 18 U.S.C. §§
2341 and 2(b). See 347 U.S. at 4, 8. The           Id.
evidence showed that Pereira fraudulently
obtained a check drawn on a California                     Although this passage notes that
bank and then presented the check to a             Pereira intended for the fraudulently
bank in Texas. Holding that the evidence           obtained check to cross state lines, we do
was sufficient to support conviction under         not interpret the Court’s opinion to mean
18 U.S.C. §§ 2314 and 2(b), the Supreme            that such knowledge was needed for
Court stated that the following elements           conviction. The Court certainly did not
had to be proven:                                  state that such knowledge was required; on
                                                   the contrary, as previously noted, the
        (1) knowledge that certain                 Court’s enumeration of the elements of the
        property has been stolen or                offense made no mention of such
        obtained by fraud, and (2)                 knowledge. Moreover, Pereira did not
        transporting it, or causing it             argue that such knowledge was required,
        to be tr ansported in                      and the question that the Court was
        interstate commerce.                       addressing in the passage quoted above
It is noteworthy that the Court did not list       was simply whether there was sufficient
knowledge that the property would be               evidence that the defendant caused the
transported in interstate commerce as one          check to travel in interstate commerce.

                                               8
Therefore, we must respectfully disagree           District Court erred in refusing to admit
with Leppo to the extent that it suggests          testimony concerning Plant’s statements to
that Pereira supports the conclusion that          his lawyer and testimony concerning
such proof is required.                            Plant’s good moral character.

       For all these reasons, we hold that                             A.
the prosecution in this case was not
required to prove that the defendant knew                 The defendant claims that, under
that the stolen property would be                  Federal Rule of Evidence 807, the District
transported in interstate commerce.                Court should have admitted testimony by
                                                   Plant’s attorney, Kathleen Jennings,
                    B.                             regarding statements that Plant made to her
                                                   before his death. According to the defense
        In a related argument, the defendant       proffer, Jennings would have testified that
contends that the District Court erred when        Plant had told her that he carried large
it denied his motion to dismiss the counts         sums of cash to make loans to friends.
of the indictment charging violations of 18        The defendant claims that the context in
U.S.C. §§ 2314 and 2(b). The defendant             which Plant made these statements --
maintains that those counts were deficient         confidential communications with his
because they did not allege that he knew           attorney -- provided strong indicia of
that the stolen goods would be transported         trustworthiness.
in interstate commerce. As discussed
above, however, such knowledge is not a                    Under the Federal Rules of
necessary element of the crime.                    Evidence, hearsay is not admissible unless
                                                   it falls under one of the enumerated
       Furthermore, even        if th e            exceptions. See Fed. R. Evid. 802. In
“willful[ness]” required by 18 U.S.C. §            addition to providing numerous specific
2(b) did demand proof that the defendant           exceptions, see Fed. R. Evid. 803, 804, the
knew that the stolen property would be             Federal Rules of Evidence contain a
transported in interstate commerce, we             “residual exception” for certain other
have already held that “‘[w]illfulness’            trustworthy hearsay statements. Fed. R.
need not be expressly stated in [an]               Evid. 807.     This provision states in
indictment charging a violation of 18              relevant part:
U.S.C. §2.” United States v. Krogstad,
576 F.2d 22, 29 (3d Cir. 1978).                           A statement not specifically
                                                          covered by Rule 803 or 804
                                                          but having equivalent
                    III.                                  circumstantial guarantees of
                                                          trustworthiness, is not
       The defendant next argues that the                 excluded by the hearsay

                                               9
       rule, if the court determines                     statem ents wo uld be
       that (A) the statement is                         truthful, other circumstances
       offered as evidence of a                          of Plant’s conversation with
       material fact; (B) the                            Jennings           provide
       statement is more probative                       insufficient circumstantial
       on the point for which it is                      g u a r a n t e e s        o f
       offered than any other                            trustworthiness.       Plant’s
       evidence wh ich the                               statements to his attorney
       proponent can procure                             were not under oath, and
       through reasonable efforts;                       there was no penalty for him
       and (C) the general purposes                      lying to his attorney.
       of these rules and the                            Additionally,             the
       interests of justice will best                    circumstances surrounding
       be served by admission of                         Plant’s meetings with his
       the statement into evidence.                      attorney contained
                                                         incentives for him to lie.
Fed. R. Evid. 807.                                       Plant’s statements were
                                                         self-serving sta te me nts
       Rule 807 is “to be used only rarely,              made at a time when he
and in exceptional circumstances” and                    knew he was under
“appl[ies] only when certain exceptional                 investigation and had a
guarantees of trustworthiness exist and                  motive to not tell the truth.
when high degrees of probativeness and                   Human nature is to deny
necessity are present.” United States v.                 c o m mi t ti n g crimes,
Bailey, 581 F.2d 341, 347 (3d Cir. 1978).                especially for a public figure
See also Bohler-Uddeholm America, Inc.                   who is held in high esteem
v. Ellwood Group, Inc., 247 F.3d 79, 112                 by the community and
(3d Cir. 2001)(“Rule 807 should only be                  kn o ws he is under
used in rare situations.”)                               investigation. In light of
                                                         these considerations, the
       Here, the District Court found that               court concludes that the
Plant’s statements to his criminal defense               hearsay statements at issue
attorney lacked the guarantees of                        are not sufficiently reliable
trustworthiness that Rule 807 demands.                   to merit admission under the
The District Court reasoned as follows:                  residual hearsay exception.

       While it is true that Plant’s               Wright, 206 F.Supp.2d at 617.
       conf idential relationship
       with his attorney is one                           A trial judge’s finding on the
       indication that Plant’s                     question whether hearsay possesses the

                                              10
guarantees of trustworthiness required by            Holmquist’s statements under the residual
Rule 807 is reviewed for clear error,                exception, and our Court affirmed.
Copperweld Steel Co. v. Demag
Mannersmann Bohler, 578 F.2d 953, 964                        Copperweld does not persuade us
(3d Cir. 1978), and we see no clear error            that the District Court erred in the present
here. Although it is not in the best                 case. The circumstances in the two cases
interests of persons implicated in criminal          were substantially different, and an
investigations to lie to their attorneys, the        assessment of the guarantees of
trial judge noted that it is not unusual for         trustworthiness relating to any statement is
them to do so. Moreover, as the trial                necessarily highly fact-specific. That the
judge observed, a public official whose              Copperweld trial judge did not commit
career is dependent on maintaining a                 clear error in finding that the statements at
reputation for integrity may find it                 issue there possessed sufficient indicia of
particularly difficult to admit criminal             reliability hardly shows that the trial judge
wrongdoing, even in a confidential                   in this case erred in finding that Plant’s
communication to an attorney. Thus, we               statements did not. Accordingly, we hold
hold that the trial judge did not commit             that the District Court did not err in
clear error in finding that Plant’s                  refusing to admit Plant’s statements.
statements to his lawyer lacked sufficient
guarantees of trustworthiness.                                            B.

        The defendan t argues that                          The defendant also claims that the
Copper we ld Steel Co v. Demag                       District Court erred when it refused to
Mannersmann Bohler, supra, shows that                admit evidence that tended to show Plant’s
the trial judge erred. In Copperweld Steel,          good character. The defendant contends
Copperweld contended that another                    that such evidence was relevant to show
company, Demag, had supplied it with                 that Plant was not involved in the illegal
unsatisfactory machinery. See 578 F.2d at            scheme with which the defendant was
956. Demag argued that a Copperweld                  charged and that this would have
officer, Holmquist, was fully aware of and           supported his defense that “there was no
accepted the risks presented by the                  conspiracy or agreement.” Appellant’s Br.
machine in question. Id. Holmquist died              at 40. The defendant argues that evidence
before the trial, and Demag was permitted            of Plant’s good character was admissible
to introduce a memorandum in which a                 under Federal Rule of Evidence 404(a)(1)
Copperweld attorney recounted statements             because Plant was an unindicted
made by Holmquist concerning the                     coconspirator and therefore an “accused.”
machine. Id. at 963-64 & n. 14. The trial            This argument is without merit.
judge found that the memorandum
possessed sufficient guarantees of                         Federal Rule of Evidence 404(a)(1)
trustworthiness to permit the admission of           provides (emphasis added):

                                                11
       Evidence of a person's                       added)(“The common law and the Federal
       character or a trait of                      and Revised Uniform Rules of Evidence
       character is not admissible                  permit the defendant, but not the
       for the purpose of proving                   government, to open the door to character
       a c t i o n i n c o n fo r m i t y           evidence.”); 22 C HARLES A LAN W RIGHT &
       therewith on a particular                    K ENNETH W. G RAHAM, J R., F EDERAL
       occasion, except:                            P RACTICE AND P ROCEDURE § 5236 at 380
       (1)        Character          of             (1978)(emphasis added)(Rule 404(a)(1)
       Accused.--Evidence of a                      “codifies the common law rule giving the
       pertinent trait of character                 criminal defendant a choice of either
       offered by an accused, or by                 remaining under the protection of the
       the prosecution to rebut the                 general rule [barring the use of character
       same.                                        evidence to prove conduct] or opening up
                                                    the issue of character by introducing
         The term “accused” is usually used         evidence that his character is good to
to denote a defendant in a criminal case,           support an inference that he did not
see, e.g., B LACK’S L AW D ICTIONARY 23             c o m m i t t h e c r im e c h a r g e d ” ) ;
(6 th ed. 1990)(defining “accused” as “[t]he        C HRISTOPHER B. M UELLER & L AIRD C.
generic name for the defendant in a                 K IRKPATRICK, F EDERAL E VIDENCE § 101
criminal case”), and the Federal Rules of           a t 544 (2d ed. 1994)(emphasi s
Evidence generally conform to this usage.           added)(Rule 404(a)(1) is based on a deeply
See Fed. R. Evid. 104(d), 608(b), 609(a),           rooted tradition that “allows the defendant
803(22), 804(b)(3). In Rule 412, where              in a criminal case to introduce evidence of
the term is used in a broader sense, the            a pertinent trait of his character as
Advisory Committee Note so states. See              circumstantial proof that he did not
Fed. R. Evid. 412, Advisory Committee               commit the charged crime”). We have
Notes, 1994 Amendments.                             found no support for the proposition that
                                                    Fed. R. Evid. 404(a)(1) was meant to
       In Rule 404(a)(1), the term                  sweep more broadly. Nor have we found
“accused” appears clearly to have been              cases interpreting the term “accused” as
used in the conventional sense to denote a          used in that provision as referring to
criminal defendant.       Rule 404(a)(1)            anyone other than a criminal defendant.
codified a deeply rooted common law rule.           Consequently, we reject the defendant’s
See Fed. R. Evid. 404(a)(1), Advisory               argument that this provision applies to an
Notes, 1972 Proposed Rules, Notes to                unindicted coconspirator.3
Subdivision (a). This common law rule
permitted a criminal defendant to
introduce pertinent evidence of good                   3
                                                        Furthermore, even if Plant could be
character. See, e.g., M CC ORMICK ON
                                                    regarded as an “accused,” Rule 404(a)(1)
E VIDENCE § 191 (5 th ed. 1999)(emphasis
                                                    would not permit the defendant to offer

                                               12
                    IV.                                    Under these circumstances, we need
                                                    not reach the merits of the argument that
        The defendant claims that he is             prejudicial spillover requires a new trial.
entitled to a new trial due to “prejudicial         Rule 33 of the Federal Rules of Criminal
spillover” from the evidence that was               Procedure authorizes a trial judge to grant
admitted to prove the bribery counts on             a new trial “[o]n a defendant’s motion.”
which the District Court granted judgment           Under this rule, “a judge has no power to
of acquittal. Contrary to LAR 28.0(a)(1),           order a new trial on his own motion.” Fed.
the defendant’s opening brief did not               R. Crim. Proc. 33, Advisory Committee
identify any place in the record of the             Notes, 1966 Amendments. A judge “can
proceedings before the District Court               act only in response to a motion timely
where this argument was made. In its                made by a defendant.” 4 Id. Accord United
brief, the government asserted that the             States v. Newman, 456 F.2d 668, 669-70
issue of prejudicial spillover was not              (3d Cir. 1972).        Indeed, even if a
raised “in any relevant pleading,”                  defendant moves for a new trial, a trial
including the defendant’s motion for a new          judge may not grant a new trial on a
trial.    Appellee’s Br. at 44.         The         ground not raised in the motion. Id. at
government argued that because the
defendant had not raised the issue of
prejudicial spillover in the District Court,           4
                                                         Courts have recognized a few narrow
the proper standard of review is plain
                                                    exceptions to this requirement. For
error. Id. The defendant filed a reply brief
                                                    example, under some circumstances a
and addressed the issue of prejudicial
                                                    trial judge may sua sponte grant a
spillover but said nothing in response to
                                                    mistrial and order a new trial, and a
the government’s contention that the issue
                                                    judge may treat a motion for judgment of
had not been raised in the District Court in
                                                    acquittal as a motion for a new trial if
any relevant pleading. See Reply Br. at
                                                    “the arguments underlying the motion
14-15.
                                                    [for judgment of acquittal] justify a new
                                                    trial.” See 3 C HARLES A LAN W RIGHT,
                                                    N ANCY J. K ING, AND S USAN R. K LEIN ,
                                                    F EDERAL P RACTICE AND P ROCEDURE
evidence of Plant’s good character. Rule            (C RIMINAL) § 552 at 459-60, 463 (2004).
404(a)(1), which is entitled, “Character            However, no recognized exception
of Accused,” refers to “[e]vidence of a             applies here. The trial judge did not
pertinent trait of character offered by an          grant a mistrial, and the defendant’s
accused.” Thus, Rule 404(a)(1) permits              motion for judgment of acquittal did not
an accused to offer evidence of the                 raise (and logically could not have
accused’s own character. It does not                raised) the issue of prejudicial spillover.
permit one accused to offer evidence of
another’s character.

                                               13
670-72.                                                     sentence should be outside
                                                            the applicable guideline
        In the present case, the defendant                  range.
did not move for a new trial based on
prejudicial spillover, and therefore the             A District Court, however, may grant a
District Court could not have granted a              downward departure if a defendant has
new trial on that ground. In any event,              made civic or charitable contributions “to
even if the defendant had moved for a new            an exceptional degree or, in some way,
trial based on prejudicial spillover and the         that makes the case different from the
trial court had denied the motion, we                ordinary case in which the factor is
would not reverse. The only evidence that            present.” United States v. Serafini, 233
would not have been admissible if the                F.3d 758, 772 (3d Cir. 2000); see also
bribery counts had not gone to trial was             United States v. Jordan, 130 F.Supp.2d
minor, dry, and technical. We see no                 665 (E.D.Pa. 2001). This is a hard
realistic likelihood that the strategy of the        standard to meet.
parties on the other counts would have
been altered in any way or that the jury’s                   In Serafini, a panel of our Court
verdicts on those counts would have been             considered the application of this standard
affected. See United States v. Murphy,               to good works performed by a state
323 F.3d 102, (3d Cir. 2003).                        legislator. In that case, more than 150
                                                     letters were submitted to the District Court
                      V.                             in an effort to persuade the Court to
                                                     impose a lenient sentence, and the Court
        The defendant’s final argument is            granted a downward departure grounded
that the District Court erred in holding that        on the defendant’s community and
it lacked the power to grant a downward              charitable activities. See 233 F.3d at 772.
sentencing departure based on the                    The panel affirmed the downward
charitable acts that the defendant                   departure based solely on those letters that
performed as a minister. We disagree.                referred to the defendant’s “assistance, in
                                                     time and money, to individuals and local
      U.S.S.G. § 5H1.11 provides as                  organizations.” By contrast, the panel
follows:                                             stated that the contents of other letters that
                                                     referred to the defendant’s “activities as a
       Military, civic, charitable, or               state legislator” could not form the basis
       pub lic         service;                      for a departure. The panel wrote:
       e m p l o y m e n t -r e l a te d
       contributions; and similar                           Conceptually, if a public
       prior good works are not                             servant performs civic and
       o rdinarily releva nt in                             charitable work as part of
       determining whe ther a                               his daily functions, these

                                                14
       should not be considered in                    rich defendant can simply write checks to
       his sentencing because we                      a charity and later ask for a downward
       expect such work from our                      departure.)
       public servants.
                                                             Here, the District Court recognized
Id. at 773. The panel thus drew a                     that the defendant’s contributions to the
distinction between “the political duties             comm unity were “profound,”
ordinarily performed by public servants”              “substantial,” and “sustained,” App. 60,
(which “cannot form the basis of a                    but the Court nevertheless denied the
departure”) and “extraordinary community              motion for a downward departure. In
service” (which can).                                 doing so, the Court stated:

        We do not understand the                             The Third Circuit [in
discussion in Serafini to mean that a                        Serafini] has guided us with
person whose occupation involves                             regard to charitable works
charitable or civic work can never qualify                   a n d c o n t r ib u t i o n s o f
for a downward departure based on                            c o m m unity re l i g io u s
extraordinary good works that relate to that                 leaders, and said that if a
occupation. Such a rule would lead to                        public servant performs
anomalous results.         For example, a                    civic and charitable work as
physician who earns a high income in                         part of his daily functions,
private practice while also making                           t h e s e shou ld no t b e
extraordinary contributions in providing                     considered in a sentencing
health care to the poor might qualify for a                  because we expect such
downward departure, while a physician                        work from our public
who gives up the possibility of a career in                  servants.
private practice to work full time in a low
paying job devoted to helping the poor                Id. at 61.
would not. Rather than endorsing such a
regime, the discussion in Serafini stands                    The District Court, however, did
for the proposition that “the political duties        not end with this observation but went on
ordinarily performed by public servants” –            to acknowledge testimony that no other
the sort of duties that are generally needed          member of the clergy in the district
to stay in office – cannot qualify. It is,            engaged in some of the types of good work
rather, only when an individual goes well             that the defendant performed. Id. The
beyond the call of duty and sacrifices for            Court stated that this work was “certainly
the community that a downward departure               commendable” but that it was “not
may be appropriate. See, e.g., United                 persuasive in this situation.” Id. The
States v. McHan, 920 F.2d 244, 248 (4 th              Court explained:
Cir. 1990) (disapproving of the idea that a

                                                 15
       It may seem harsh to say,                  ground for reversal. The defendant’s
       and I guess it is, but the                 conviction and sentence are therefore
       Court also believes it cannot              affirmed.
       permit the defendant to hide
       behind the very community
       from whom he stole. He
       solicited money which he
       purported to use to help
       parishioners of his Church
       and the community at large.
       Instead he used the money,
       as we have heard
       uncontested testimony, to do
       things, personal things fix
       up his car, his son’s house,
       and to gamble.
       Thus, the Court will not
       downwardly depart based
       upon the defendant’s civic
       w o r k a n d c h a r it a b le
       contributions.

Id. at 61-62.

        As we understand the basis for the
District Court’s decision, the Court held
that, the defendant’s net charitable and
civic contributions – taking into account
both the good and bad that he did in his
capacity as a member of the clergy –
cannot be considered as so extraordinarily
positive as to warrant a downward
departure. We agree with this analysis and
with the District Court’s conclusion that
the requested downward departure was not
permitted.
                    V.

      We have considered all of the
defendant’s arguments and have found no

                                             16
