United States v. Wright

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Precedential or Non-Precedential: Precedential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

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"USA v. Wright" (2004). 2004 Decisions. Paper 755.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/755

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
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