                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                  No. 10-2162
                                 _____________

                        UNITED STATES OF AMERICA

                                         v.

                            JOHN J. HAMILTON, JR.,

                                     Appellant
                                 _____________

                 On Appeal from the United States District Court
                           for the District of New Jersey
                      District Court No. 2-05-cr-00876-001
                  District Judge: The Honorable Jose L. Linares


                            Argued: January 25, 2011
                              ________________

            Before: McKEE, Chief Judge, and SMITH, Circuit Judges,
                       and STEARNS, District Judge*

                            (Filed: February 3, 2011)

                                ______________

                                   OPINION
                                ______________



      *
       The Honorable Richard G. Stearns, United States District Judge for the United
States District Court of Massachusetts, sitting by designation.
Joshua L. Markowitz, Esq.
Michael J. O’Donnell, Esq. (Argued)
3131 Princeton Pike
Building 3D, Suite 200
Lawrenceville, NJ 08646

Counsel for Appellant

Mark E. Coyne, Esq.
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

Glen J. Moramarco, Esq. (Argued)
Office of the United States Attorney
Camden Federal Building & Courthouse
401 Market Street
P.O. Box 2098, 4th Floor
Camden, NJ 08101

Counsel for Appellee

STEARNS, District Judge.

      In 2001, John Hamilton served as a City Councilman and as the Deputy

Mayor of Asbury Park, New Jersey. Hamilton held one of five votes on the City

Council, which controlled the hiring of contractors to perform City services. Since

the 1970s, Robert Steffer has worked with the F.B.I. as an undercover cooperating

witness. In his dealings with Hamilton, Steffer held himself out to be a corrupt

demolition contractor. In May of 2001, Hamilton accepted $2,000 in cash from

Steffer and the free construction of a driveway at his home (allegedly worth

$5,000).   In exchange, Hamilton agreed to assist Steffer in obtaining City

                                        2
demolition contracts. Vincent Baker, a friend of Hamilton’s, served as Hamilton’s

bag man. Steffer recorded his meetings with Hamilton and Baker, in which they

planned and executed the bribery scheme. On February 22, 2005, the F.B.I.

arrested Hamilton.

      On December 12, 2005, a grand jury sitting in Newark, New Jersey, issued a

five-count indictment, naming Hamilton in four counts: conspiracy to extort

benefits under color of official right in violation of 18 U.S.C. § 1951(a); attempt to

extort benefits under color of official right in violation of 18 U.S.C. § 1951(a);

acceptance of a thing of value to influence and reward in violation of 18 U.S.C. §

666(a)(1)(B); and making a false statement in violation of 18 U.S.C. § 1001. On

November 6, 2006, the grand jury returned a superseding indictment adding an

additional count of attempted witness tampering in violation of 18 U.S.C. §

1512(b)(3). The case was assigned to United States District Judge Jose L. Linares.

      On September 12, 2007, Baker, who was also named in the indictment, pled

guilty to Count Four.1 On November 13, 2007, Hamilton’s jury trial commenced.

Judge Linares declared a mistrial on November 21, 2007, as the jury was unable to

reach a verdict on any count. A retrial began on September 23, 2008. On October

8, 2008, the jury returned a verdict of guilty on all counts. Hamilton filed three

      1
          Count Four charged Baker with money laundering, in violation of 18 U.S.C.
§ 1956(a)(3). The District Court sentenced Baker, who testified against Hamilton at
trial, to a one-year term of probation.
                                          3
post-verdict motions for a new trial; the District Court denied all three motions in a

written opinion issued on March 18, 2010. On April 12, 2010, Judge Linares

sentenced Hamilton to concurrent 41-month terms of imprisonment on each of the

five counts.

      Hamilton’s appeal focuses primarily on the District Court’s denial of the

motions for a new trial. He alleges that his trial counsel labored under a conflict of

interest, that the District Court gave an erroneous jury instruction regarding the

$5,000 threshold of the bribery statute, 18 U.S.C. § 666, and that cumulative

overreaching by the Government tainted the overall fairness of his trial. He also

claims error in the District Court’s four-level Guideline enhancement of his

sentence based on his status as an elected public official.2

      Hamilton’s principal argument concerns his trial counsel’s allegedly

debilitating conflict of interest. Hamilton did not object at trial to a conflict of

interest on the part of Michael Baldassare, his lead trial counsel, or the other



      2
        The District Court had subject matter jurisdiction under 18 U.S.C. § 3231.
This Court has jurisdiction over the challenges to the conviction pursuant to 28
U.S.C. § 1291, and over the challenges to the sentence pursuant to 18 U.S.C. §
3742(a). We review the denial of a motion for a new trial for an abuse of discretion.
United States v. Joseph, 996 F.2d 36, 39 (3d Cir. 1993). We give plenary review to
the District Court’s legal conclusions, including those involving the interpretation of
the advisory Sentencing Guidelines. See United States v. Diaz, 592 F.3d 467, 470 (3d
Cir. 2010). We screen any attendant factual findings for clear error. See United
States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir. 1998).
                                           4
lawyers from the firm of Gibbons, P.C., who assisted Baldassare in the defense.3

Under Cuyler v. Sullivan, 446 U.S. 335, 348 (1980), a defendant who raised no

objection at trial must demonstrate an actual conflict of interest on his lawyer’s

part. An “actual” conflict of interest is a conflict that adversely affected counsel’s

performance at trial, “as opposed to a mere theoretical division of loyalties.”

Mickens v. Taylor, 535 U.S. 162, 171 (2002).

      “[A]n actual conflict is more likely to occur in cases of joint representation –

representation of more than one defendant at the same trial – rather than simply

multiple representation – representation of defendants in different trials . . . .”

United States v. Morelli, 169 F.3d 798, 810 (3d Cir. 1999). Cf. Cuyler, 446 U.S. at

346 (an “actual” conflict of interest will not be inferred from the mere fact of joint

representation).

      Although Asbury Partners was not a defendant in this or any other trial,

Hamilton alleges that the coterminous representation by the Gibbons law firm of

Asbury Partners, the “master developer” of the Asbury Park waterfront project,




      3
        We do not imply any fault on Hamilton’s part in this regard. We have no
reason to doubt his explanation that he first became aware of the potential conflict
upon reading a promotional brochure listing Asbury Partners as a client of the
Gibbons firm well after the verdict in his second trial.
                                          5
created such a conflict.4 Where, as here, the allegation is of a conflict resulting

from multiple representation, Hamilton must show two elements.

      First, he must demonstrate that some plausible alternative defense
      strategy or tactic might have been pursued. He need not show that the
      defense would necessarily have been successful had it been used, but
      that it possessed sufficient substance to be a viable alternative.
      Second, he must establish that the alternative defense was inherently
      in conflict with or not undertaken due to the attorney’s other loyalties
      or interests.

United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988) (quoting United

States v. Fahey, 769 F.2d 829, 836 (1st Cir. 1985)).5 See also McFarland v.

Yukins, 356 F.3d 688, 701 (6th Cir. 2004).

      The essence of the argument, as we understand it, is that despite the winning

contribution Hamilton could supposedly have made to his own defense, Baldassare

did not call him to testify because of “the possibility that his testimony would have

reflected negatively on Asbury Partners.” Appellant’s Br. at 22. See Boykin v.

      4
        It is not entirely clear from the record, but it appears that the corporate
department of Gibbons, P.C., a 200-plus member Newark, New Jersey, law firm,
represented Asbury Park in connection with the commercial development of one of
the waterfront parcels.
      5
        If a defendant makes the requisite showing, “prejudice will be presumed and
the defendant need not demonstrate a reasonable probability that, but for the
attorney’s conflict of interest, the trial’s outcome would have been different.” Rubin
v. Gee, 292 F.3d 396, 401-402 (4th Cir. 2002). See United States v. Segarra-Rivera,
473 F.3d 381, 385 n.2 (1st Cir. 2007) (distinguishing claims in which counsel is
alleged to have performed incompetently, which require a showing of prejudice, from
claims in which a defendant succeeds in showing that counsel labored under an
“actual conflict of interest,” which may trigger relief without a showing of prejudice).
                                           6
Webb, 541 F.3d 638, 646 (6th Cir. 2008) (“[T]he failure to call witnesses beneficial

to client A but detrimental to client B, coupled with the failure to cross-examine

client B, is the very definition of a conflict of interest . . . .”). However, Hamilton

offered no evidence to the District Court that Baldassare even knew that corporate

lawyers in his large law firm were representing Asbury Partners in a commercial

venture involving Asbury Park, or that he failed to pursue a viable alternative

defense because of his firm’s client relationship with Asbury Partners.6 There was

simply no error in the District Court’s finding that Hamilton had failed to bear his

burden of demonstrating the existence of an actual conflict of interest.

      We turn next to Hamilton’s claim that he should have been granted a new

trial on Count Three (the bribery statute) because the Government had misled the

jury as to how the $5,000 threshold requirement under 18 U.S.C. § 666 could be

met. Under § 666, it is a crime when a person who is an agent of a state or local

government or agency

      corruptly solicits or demands for the benefit of any person, or accepts
      or agrees to accept, anything of value from any person, intending to be
      influenced or rewarded in connection with any business, transaction,
      or series of transactions of such organization, government, or agency
      involving any thing of value of $5,000 or more.


      6
         The more plausible explanation for the strong advice Hamilton was given not
to testify was the damning impeachment material available to the government in the
2,000 secret tape recordings that Steffer had made during the unfolding of the illicit
bargain.
                                          7
18 U.S.C. § 666(a)(1)(B).

      At Hamilton’s trial, the District Court provided the following instruction to

the jury regarding the $5,000 threshold.

      This $5,000 threshold can be reached by determining how much the
      business or transactions were worth to the local government, the payor
      or the public official who was soliciting, demanding, accepting or
      agreeing to accept the payment. For instance, if the value of the
      corrupt payment that the public official accepts is $5,000 or more, or if
      the value of the contract or matter at issue is worth $5,000 or more to
      the payor of the local government, then this is evidence that the value
      of the particular transaction or business at issue was worth $5,000 or
      more.

Appellee’s Supp. App. at 460-461. In its opening and closing statements to the

jury, the Government had urged an expansive view of the $5,000 jurisdictional

threshold, suggesting that it could be satisfied either by the value of the bribes paid

by Steffer to Hamilton, or by the value of the corrupt demolition contracts that

Hamilton had attempted to procure on Steffer’s behalf.

      During the deliberations, the jury sought clarification of the instruction on

the $5,000 threshold. At Hamilton’s request, and over the Government’s objection,

the District Court instructed the jury that they could not rely simply on the amount

of the bribe, but that they must also find the value of the anticipated business or

transactions to be $5,000 or more. Because the District Court instructed the jury as

Hamilton requested, and in a way more favorable to his cause than the one the

Government urged, we are not inclined to entertain his challenge of the same

                                           8
instruction on appeal.7 Cf. United States v. Ozcelik, 527 F.3d 88, 97 n.6 (3d Cir.

2008) (“Because Ozcelik made a joint request in favor of the very instructions he

now challenges, he waived his right to raise these instructional issues on appeal

under the invited error doctrine.”).

      We have examined the remaining grab bag of issues raised by Hamilton and

find that none of them merit any extended comment.8

      For the foregoing reasons, we will affirm the judgment of the District Court.




      7
          To be clear, we find nothing erroneous in the instruction as given.
      8
          Judge Linares found that Agent Russ’s colorful description of the
investigation in which Hamilton had become enmeshed sailed close to the wind, but
short of the line the Judge had drawn. The stray remark by Steffer regarding the fact
that the Asbury Park City Manager (whose name had come up in the investigation)
was “in prison now,” was fully addressed by Judge Linares’s forceful curative
instruction. We have read the prosecutor’s closing argument and despite an
unfortunate verbal tic (the repeated resort to the circumlocution “I think”), we see
nothing in it that would amount to impermissible vouching. Any criticism over the
lack of access to Baker’s personal tax returns is laid solely at Hamilton’s feet by
virtue of his failure to take advantage of the permission he was given to subpoena
them. We perceive nothing in the nature of double counting in U.S.S.G. §
2C1.1(b)(3)’s four-level enhancement for elected officials or anything particularly
unfair in applying the enhancement to Hamilton even though “he had not been elected
to a high-level decision-making or sensitive position.” The argument that Count
Three should have been set aside by Judge Linares because Hamilton could not have
delivered on his corrupt promises confuses the doctrines of legal and factual
impossibility, as counsel acknowledged at oral argument. Finally, the suggestions
that the Government extracted unfair advantage by not indicting its key witness
(Steffer), or that it “manufactured” jurisdiction under the Hobbs Act by hiring a
contractor that used heavy equipment manufactured out of state to pave the “gifted”
driveway at Hamilton’s home, call for no comment at all.
                                            9
