United States v. Chartock

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit

6-30-2008

USA v. Chartock
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1973

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"USA v. Chartock" (2008). 2008 Decisions. Paper 958.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/958

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 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 07-1973

UNITED STATES OF AMERICA,

v.

PHILIP CHARTOCK,

Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 05-cr-00614-02)
District Judge: Honorable Lawrence F. Stengel

Argued on June 4, 2008

Before: FISHER, JORDAN, and VAN ANTWERPEN, Circuit Judges.

(Filed June 30, 2008)

Peter Goldberger, Esq. (Argued)
Law Office of Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003-2276

Counsel for Appellant

Patrick L. Meehan, Esq.
Robert A. Zauzmer, Esq. (Argued)
Michael A. Schwartz, Esq.
Office of United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106

Counsel for Appellee

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Appellant Philip Chartock appeals from the judgment of conviction and sentence

entered by the District Court for the Eastern District of Pennsylvania on April 6, 2007.

For the following reasons, this Court will affirm.

I.

We will set forth only those facts necessary to our analysis.

This case centers around an alleged scheme by Richard Mariano, Philip Chartock,

and other co-defendants to defraud the citizens of Philadelphia of the honest services of

Richard Mariano. Mariano was a member of the Philadelphia City Council and

represented the Seventh Councilmanic District, which comprises North Philadelphia and

parts of Northeast Philadelphia. Philip Chartock (and his father Louis Chartock, before

him) owned Erie Steel, Ltd. (“Erie”), a company located within Mariano’s district.

According to the indictment, Philip Chartock indirectly made three payments to Richard

Mariano in 2002, and Richard Mariano afforded favorable treatment to Erie from at least

2002 to 2005.

The first payment occurred on or about May 10, 2002. Philip Chartock gave

Mariano a check drawn from Erie’s account in the amount of $5,873.75. This check was

2
not made payable directly to Mariano, but instead was made payable to Fleet Credit Card

Services, so that Mariano could pay his personal credit card bill. Upon Philip Chartock’s

direction, Erie bookkeeper Maggie Greer classified the check as a sales expense.

Only a few days prior to this payment, officials from the Air Management Services

Division of the City of Philadelphia Department of Public Health (“Air Management”)

attempted to inspect Erie to determine if the company was complying with the City’s air

pollution standards. Philip Chartock did not consent to the inspection on that day and

called Mariano when the inspectors left. Mariano immediately called Air Management on

Erie’s behalf. Once it was determined that Erie was in violation of a number of

regulations, Mariano used his influence to help postpone for several years potentially

costly corrective measures that were necessary for Erie to comply with the applicable

regulations.

The second payment occurred on or about August 26, 2002. Prior to this payment

being made, outside accountants had discovered and questioned the circumstances

surrounding the May 10, 2002 check from Erie to Fleet Credit Card Services. When

Philip Chartock told the outside accountants that the check was for the payment of a

politician’s debt, the accountants told Philip Chartock that the payment should be

classified as a loan, not a sales expense. To avoid further scrutiny, this second payment

was not made directly to Mariano’s credit card company, but rather was channeled

through several intermediaries.

First, an Erie check in the amount of $6,672.00 was written and made payable to

3
William Burns. This check was falsely classified as a cleanup and removal expense.

Rosalia Mattioni, who shared a joint account with William Burns, was given the Erie

check by her husband Joseph Pellecchia1 following a meeting between Mariano and

Pellecchia. Rosalia Mattioni deposited this Erie check into the joint account and obtained

a cashier’s check in the amount of $6,672.00 made payable to AT&T Universal Card, in

accordance with Joseph Pellecchia’s instructions. A fake invoice was then sent by

Mattioni to Erie. This check was used to pay the personal credit card bills of Mariano.

At around the time of this second payment, Philip Chartock was seeking Mariano’s

assistance in obtaining tax relief for Erie through a program known as Keystone

Opportunity Zone (“KOZ”). On November 13, 2002, a meeting was organized at

Mariano’s office involving Mariano, Philip Chartock, and Keystone Opportunity Zone

Administrator Vincent Dougherty, among others. At this meeting, Dougherty explained

that Erie did not meet the criteria for the tax relief. Despite Dougherty’s explanation that

Erie did not qualify for relief, the Chartocks continued to seek inclusion in the KOZ

program, and on November 25, 2002, Louis Chartock asked Mariano to introduce

legislation making Erie eligible for tax relief.

Shortly after this request, on or about December 6, 2002, Philip Chartock made the

third payment. Like the second payment, this payment was also channeled through an

1
Rosalia Mattioni and Joseph Pellecchia owned and operated Danlin Management
Group. Danlin Management Group received favorable treatment from Mariano following
its actions with respect to this second payment.

4
intermediary rather than being made payable directly to Mariano’s credit card company.

An Erie check in the amount of $10,900.00 was written and made payable to Recon

International,2 a company owned by co-defendant Vincent DiPentino. This payment was

improperly classified as a freight, equipment, and rental expense by Erie, and DiPentino

sent a fake invoice to Philip Chartock. DiPentino deposited this check into his personal

account and wrote a check in the amount of $10,900.00 made payable to Capital One to

pay Mariano’s personal debts.

After these payments were made, Mariano continued to recommend that Erie be

included in new KOZ tax relief legislation. In April 2003, Erie was included in a

proposed KOZ tax relief bill introduced into City Council. In May 2003, Mariano voted

twice in favor of the KOZ tax relief bill, and the bill ultimately became law. During

neither affirmative vote did Mariano disclose his financial relationship with Erie or recuse

himself from the voting, as required by law. Mariano also failed to include the payments

from Erie on the State and City financial disclosure forms, as required by law.

Even after being included in the KOZ tax relief legislation, Philip Chartock and his

father continued to seek additional favors from Mariano. These requested favors included

assistance with energy rate reductions from PECO, resolution of outstanding tax issues,

removal of a judgment against Erie, and rate reductions from the Pennsylvania Workers’

Compensation Rating Bureau.

2
Recon International received favorable treatment from Mariano following its
actions with respect to this third payment.

5
 The alleged honest services fraud scheme became public when Maggie Greer, the

Erie bookkeeper who had helped handle the payments to Mariano and was herself later

charged with embezzling money from Erie, wrote an anonymous letter dated April 30,

2004 to the City Council President and the Mayor detailing the Mariano-Chartock honest

services fraud scheme. Mariano immediately learned of this letter from the City Council

President, and told his Chief of Staff, Walter DeTreux, that the first payment to his credit

card was a loan and that it had been repaid. Other steps were also taken by Philip and

Louis Chartock to disguise the payments as loans. In May 2004, while meeting with

Assistant District Attorney Steven Hyman regarding the embezzlement case against

Maggie Greer, Philip Chartock told Hyman that he had loaned money to Mariano, that

Mariano repaid the loan, and that he could likely locate a receipt. Following this meeting,

a fake receipt dated May 3, 2004 was created, and the receipt bore Philip Chartock’s

signature.

On March 30, 2005, Philip Chartock told FBI Agent Raymond Manna that the

check written to Fleet Credit Card Services (the first payment) was a loan and that

Mariano repaid the loan, but he told Agent Manna that there were no loan documents.

With respect to the checks related to the second and third payments (to William Burns

and Recon International, respectively), Philip Chartock told Agent Manna that he signed

the checks, but stated that he knew nothing about the checks. Finally, although Philip

Chartock admitted to Agent Manna that Mariano had helped Erie with various issues,

Philip Chartock never mentioned Mariano’s help with the KOZ tax relief legislation.

6
 On October 25, 2005, a grand jury in the Eastern District of Pennsylvania returned

a 26-count indictment naming Philadelphia City Councilman Richard Mariano and five

co-defendants, including Philip Chartock. Philip Chartock was charged in eleven counts.

Count 1 charged Philip and Louis Chartock, among others, with conspiracy to commit

honest services mail and wire fraud under 18 U.S.C. § 371. Counts 2 through 8 charged

Philip Chartock (together with Louis Chartock in Counts 3 and 8) with aiding and

abetting honest services mail fraud in violation of 18 U.S.C. §§ 2, 1341, and 1346. Count

14 charged Philip and Louis Chartock with aiding and abetting honest services wire fraud

in violation of 18 U.S.C. §§ 2, 1343, and 1346. Counts 18 and 19 charged Philip

Chartock with money laundering in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(B)(I).

In pretrial motions, Philip Chartock moved to dismiss the indictment, contending

that the honest services fraud charges were unconstitutionally vague and that the money

laundering charges did not involve the proceeds of illegal activity. The District Court

denied these motions to dismiss the indictment. The case then proceeded to trial on April

24, 2007. On May 8, 2007, the jury found Philip Chartock guilty of conspiracy to commit

honest services fraud (Count 1), aiding and abetting honest services mail fraud (Counts 2,

3, 4, 5, and 6), aiding and abetting honest services wire fraud (Count 14), and money

laundering (Counts 18 and 19). The jury found Philip Chartock not guilty on one count

of aiding and abetting honest services mail fraud (Count 8), and the Government

successfully moved to dismiss one of the honest services mail fraud charges (Count 7). In

response to specific jury interrogatories requested by Philip Chartock, the jury found

7
Philip Chartock guilty under both the bribery and failure to disclose theories3 on Counts

2, 3, 4, and 14, and found Philip Chartock guilty of Counts 5 and 6 only under the failure

to disclose theory.

Philip Chartock filed a post-trial motion seeking judgment of acquittal or a new

trial, challenging the sufficiency of the evidence supporting the honest services fraud and

money laundering convictions. Philip Chartock also challenged the District Court’s jury

instruction concerning the meaning of “on or about” as used in the indictment. On March

1, 2007, the District Court denied the post-trial motions.

After a sentencing hearing on March 19, 2007, the District Court sentenced Philip

Chartock to a term of imprisonment of 40 months, a term of supervised release of two

years, a fine of $25,000, and a special assessment of $900. Chartock filed a timely notice

of appeal.

II.

The United States District Court for the Eastern District of Pennsylvania had

subject matter jurisdiction over this case pursuant to 18 U.S.C. § 3231. This Court has

appellate jurisdiction pursuant to 28 U.S.C. § 1291.

III.

A. Honest Services Fraud - Failure to Disclose Theory

Honest services fraud can be proven in two ways: “(1) bribery, where a legislator

3
These theories of guilt for honest services fraud are more fully described herein.

8
was paid for a particular decision or action; or (2) failure to disclose a conflict of interest

resulting in personal gain.” United States v. Antico, 275 F.3d 245, 262-63 (3d Cir. 2001).

The Government concedes that “to convict a private citizen, such as Chartock, of the

failure to disclose a conflict of interest theory of honest services fraud, the government

must introduce sufficient evidence to prove that the private citizen was aware that the

public official was required to disclose their relationship and that the private citizen

knowingly assisted the public official in the failure to disclose.” Gov’t Br. at 38.

Chartock4 argues before this Court that: (1) the indictment failed to include in each count

an allegation that he had knowledge of Mariano’s disclosure requirements; (2) the

evidence was insufficient to prove that he possessed such knowledge; and (3) the District

Court failed to instruct the jury that it could not convict him unless he possessed such

knowledge. These arguments will each be dealt with separately below.

1. Sufficiency of Indictment

A claim that the indictment failed to properly plead honest services fraud

violations is a legal question subject to plenary review. United States v. Kemp, 500 F.3d

257, 280 (3d Cir. 2007). An indictment is considered sufficient if it: “‘(1) contains the

elements of the offense intended to be charged, (2) sufficiently apprises the defendant of

what he must be prepared to meet, and (3) allows the defendant to show with accuracy to

what extent he may plead a former acquittal or conviction in the event of a subsequent

4
In this opinion, when the word “Chartock” is used alone, the word refers to Philip
Chartock.

9
prosecution.’” Id. (quoting United States v. Vitillo, 490 F.3d 314, 321 (3d Cir. 2007)).

“‘[N]o greater specificity than the statutory language is required so long as there is

sufficient factual orientation to permit the defendant to prepare his defense and to invoke

double jeopardy in the event of a subsequent prosecution.’” Kemp, 500 F.3d at 280

(quoting United States v. Rankin, 870 F.2d 109, 112 (3d Cir. 1989)).

With respect to the conspiracy count (Count 1) of the indictment, this Court has

stated that “[a]n indictment charging a conspiracy under 18 U.S.C. § 371 need not

specifically plead all of the elements of the underlying substantive offense.” United

States v. Werme, 939 F.2d 108, 112 (3d Cir. 1991); see also Wong Tai v. United States,

273 U.S. 77, 81 (1927) (“[I]t is not necessary to allege with technical precision all the

elements essential to the commission of the offense which is the object of the

conspiracy.”). Rather, the indictment simply must “put defendants on notice that they are

being charged with a conspiracy to commit the underlying substantive offense.” Werme,

939 F.2d at 112. Here, the indictment charged Chartock specifically with conspiring to

defraud the City of Philadelphia of Mariano’s honest services, and the indictment later

alleged that Mariano failed to disclose the payments made by Chartock in violation of

local and state laws. App. at 108-09. Although the indictment did not specifically allege

that Chartock knew of Mariano’s duty to disclose, the indictment nonetheless sufficiently

pleaded an honest services fraud conspiracy.

With respect to the honest services mail/wire fraud counts and the money

laundering counts, it should first be noted that these counts incorporate many of the

10
paragraphs from Count 1, including the paragraph describing Mariano’s failure to

disclose the payments. See, e.g., App. at 132 (Count 18). Then, at the end of each count,

the indictment specifically stated that one of the statutes violated by Chartock was 18

U.S.C. § 2, the aiding and abetting statute. Because “aiding and abetting” requires proof

that the “‘defendant knew of the crime and attempted to facilitate it,’” United States v.

Cunningham, 517 F.3d 175, 178 (3d Cir. 2008) (quoting United States v. Garth, 188 F.3d

99, 113 (3d Cir. 1999)), the honest services mail/wire fraud and money laundering counts

sufficiently pleaded the necessary element that Chartock knew of Mariano’s disclosure

requirement and knowingly assisted in Mariano’s evasion of the requirement.

2. Sufficiency of Evidence

Chartock next argues that the evidence was insufficient to permit the jury to find

that he knew of Mariano’s duty to disclose and that he knowingly assisted in Mariano’s

failure to disclose. This Court must review the record de novo to ensure that the jury’s

verdict is supported by substantial evidence. United States v. Mussare, 405 F.3d 161, 166

(3d Cir. 2005). In determining whether the jury’s verdict is supported by sufficient

evidence, this Court “must view the evidence in the light most favorable to the

Government and sustain the verdict if any rational juror could have found the elements of

the crime beyond a reasonable doubt.” United States v.Cothran, 286 F.3d 173, 175 (3d

Cir. 2002).

Chartock notes, and the Government concedes, that there was no direct evidence

proving that Chartock knew of Mariano’s duty to disclose. “In the absence of direct

11
evidence, however, the requisite knowledge and intent can be demonstrated

circumstantially, and where sufficient circumstantial evidence is presented, a jury may

properly infer that the defendants were culpably involved with, and knowingly furthered,

the fraudulent scheme.” United States v. Pearlstein, 576 F.2d 531, 541 (3d Cir. 1978)

(internal citations omitted) (in the context of a mail fraud scheme). The Government’s

circumstantial evidence that Chartock concealed payments to Mariano by repeatedly

making payments either directly to Mariano’s credit card companies or by using a third

party intermediary is powerful evidence that Chartock knew of Mariano’s disclosure

duties. In addition, Chartock devised a scheme to cover up the payments by falsely

claiming that the payments were loans and then falsely claiming that the loans had been

paid off. The jury certainly acted reasonably in drawing the inference that these efforts at

concealment demonstrated that Chartock knew about Mariano’s disclosure requirements

and that Chartock was knowingly assisting Mariano in the avoidance of these

requirements.5

Chartock also argues that the efforts at concealment are just as consistent, if not

more consistent, with the theory that Chartock sought to disguise the payments as

deductible business expenses for tax purposes. However, this Court has stated that

5
Chartock cites to United States v. Carbo, 2007 WL 2323126, *22-29 (E.D. Pa.
2007), for the proposition that although the circumstantial evidence of concealment was
sufficient to allow a jury to conclude that Chartock knew he was involved in some type of
illegality, the evidence does not support an inference that Chartock knew of Mariano’s
duty to disclose the payments. However, because this Court questions the correctness of
the holding in Carbo, this Court is not persuaded by this District Court opinion.

12
“[t]here is no requirement . . . that the inference drawn by the jury be the only inference

possible or that the government’s evidence forecloses every possible innocent

explanation.” United States v. Iafelice, 978 F.2d 92, 97 n.3 (3d Cir. 1992). The jury was

clearly justified in rejecting this alternative explanation of the evidence, and the evidence

clearly supported the jury’s finding that Chartock knew of Mariano’s disclosure

requirement and knowingly assisted in Mariano’s evasion of that requirement.

3. Jury Instructions

Finally, Chartock argues that the District Court’s jury instructions were legally

erroneous because the District Court failed to instruct the jury that he could not be found

guilty unless the jury found that he knew of Mariano’s duty to disclose the payments from

Erie and that he knowingly aided Mariano’s failure to disclose. Additionally, Chartock

argues that the District Court abused its discretion in failing to give his requested

instruction.

This Court exercises plenary review6 in determining “‘whether the jury

instructions stated the proper legal standard.’” United States v. Leahy, 445 F.3d 634, 642

(3d Cir. 2006) (quoting United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995)). In

making this determination, we must “consider the totality of the instructions and not a

particular sentence or paragraph in isolation.” Coyle, 63 F.3d at 1245. This Court

6
At oral argument, the Government argued that because Chartock failed to object
after the delivery of the charge, review is for plain error. See United States v. Pelullo,
399 F.3d 197, 221 (3d Cir. 2005). Because we find no error in the jury instructions, using
the plain error standard instead of the plenary standard would not affect our analysis.

13
reviews the refusal to give a requested instruction for abuse of discretion. Leahy, 445

F.3d at 642.

The jury instruction regarding honest services fraud adequately defined the

requirement that Chartock know of the disclosure requirements and aid Mariano in his

avoidance of those requirements.7 The District Court stated “the Government must prove

beyond a reasonable doubt that Councilman Mariano received a benefit which he was

required to disclose under state or local law which he failed to disclose, or that he acted

under a conflict of interest which he was required to disclose but did not disclose, and that

the defendant, one or both, aided and abetted the public official.” App. at 1566. The

District Court later clarified the requirements for “aiding and abetting” as follows:

In order to be found guilty of aiding and abetting the
commission of a crime, the Government must prove beyond a
reasonable doubt that the defendant first knew that the crime charged
was to be committed or was being committed. Second, that the
defendant knowingly did some act for the purpose of aiding the
commission of that crime. And third, acted with the intention of
causing the crime charged to be committed.

App. at 1577.

Viewing these two components of the jury instructions together, this Court

concludes that the jury was properly instructed of the requirement of finding that

Chartock knew of Mariano’s disclosure requirement and assisted in the evasion of that

requirement. Because the actual jury instruction properly stated the law, any refusal by

7
The District Court also properly instructed the jury on the conspiracy count
(Count 1).

14
the District Court to give a requested instruction was not an abuse of discretion. See

United States v. Davis, 183 F.3d 231, 250 (3d Cir. 1999) (discretion only abused if

requested instruction is “not substantially covered by other instructions”).

B. “Stream of Benefits” Instruction

Chartock also argues that the District Court’s “stream of benefits” instruction on

the issue of bribery was erroneous. This Court exercises plenary review in determining

“‘whether the jury instructions stated the proper legal standard.’” Leahy, 445 F.3d at 642

(quoting Coyle, 63 F.3d at 1245). The District Court, in part, instructed the jury that “[i]f

you find beyond a reasonable doubt that a person gave an official a stream of benefits in

implicit exchange for one or more official acts, you may conclude that a bribery has

occurred.” App. at 1564. As Chartock acknowledges, this Court recently approved of

almost identical language in an honest services bribery case, and Chartock simply raises

this issue to preserve it for review. Kemp, 500 F.3d at 281-82, cert. denied, 128 S. Ct.

1329 (February 19, 2008). Consistent with this Court’s precedent, we conclude that the

District Court committed no error in giving this “stream of benefits” instruction.

C. Money Laundering Convictions

To establish a money laundering offense under 18 U.S.C. § 1956(a)(1), the

government must plead and prove: “(1) an actual or attempted financial transaction; (2)

involving the proceeds of specified unlawful activity; (3) knowledge that the transaction

involves the proceeds of some unlawful activity; and (4) . . . knowledge that the

transactions were designed in whole or in part to conceal the nature, location, source,

15
ownership, or control of the proceeds of specified unlawful activity.” United States v.

Omoruyi, 260 F.3d 291, 294-95 (3d Cir. 2001). Chartock makes two separate arguments

regarding the insufficiency of the indictment, and they will be addressed separately

below.8 As before, a claim that the indictment failed to properly plead the offense

charged is subject to plenary review. Kemp, 500 F.3d at 280.

1. “Proceeds” Argument

Chartock first argues that the financial transaction alleged in the indictment did not

involve the “proceeds” of the specified unlawful activity. Chartock notes that the money

laundering counts, Counts 18 and 19, explicitly state that the “proceeds” for purposes of

the statute were from the unlawful activities charged in Counts 3 and 4 of the indictment,

respectively. Chartock also notes that Counts 3 and 4 are based upon the mailings of the

checks from the third parties to Mariano’s credit card companies. Chartock argues that

because the mail fraud offenses are not complete until the mailings occur, and because the

financial transactions constituting the “laundering” alleged in the indictment occurred

before the mailings, the indictment failed to properly plead that the financial transactions

involved “the proceeds of specified unlawful activity.” See 18 U.S.C. § 1956(a)(1).

This Court has stated that “for money to become ‘proceeds’ it must be derived

from a completed offense, or a completed phase of an ongoing offense.” Omoruyi, 260

8
Chartock additionally argues that the evidence was insufficient because of the
failures of the indictment and that the jury instructions repeated the errors made in the
indictment. Because this Court concludes that the indictment properly charged the money
laundering offenses, this Court need not reach these related arguments.

16
F.3d at 295 (emphasis added); see also United States v. Conley, 37 F.3d 970, 980 (3d Cir.

1994). A mail fraud offense is not completed until the mails are used, and thus the

indictment in this case is only legally sufficient if the financial transactions alleged in the

indictment were performed with the proceeds of a “completed phase of an ongoing

offense.” Omoruyi, 260 F.3d at 295-96. Chartock cites to two cases for the proposition

that mail fraud is not an “ongoing offense,” but these cases both involved the question of

which Sentencing Guidelines Manual should be used based on a mail fraud conviction

that occurred on a date prior to the change in a particular sentencing guideline, and thus

these cases are not controlling. See United States v. Neadle, 72 F.3d 1104, 1108 n.2 (3d

Cir. 1995); United States v. Seligsohn, 981 F.2d 1418, 1424-25 (3d Cir. 1992).

In this case, the initial writing of the check and the presentation of the check to

Mariano constituted the “completed phase” of the ongoing offense of honest services mail

fraud. Chartock argues that because the indictment charged a specific count of honest

services mail fraud, and not an ongoing mail fraud scheme, the indictment did not plead

an ongoing offense. However, mail fraud, by its statutory definition and as interpreted by

this Court, includes the element of Chartock’s “knowing and willful participation in a

scheme or artifice to defraud.”9 Antico, 275 F.3d at 261 (emphasis added). Although the

offense of mail fraud is not complete until the use of the mails in furtherance of the

scheme or artifice to defraud, the scheme is often in place and actions are often taken in

9
Additionally, Counts 18 and 19 incorporate many of the paragraphs from the
conspiracy to commit honest services fraud charged in Count 1. App. at 132, 134.

17
furtherance of the scheme prior to the use of the mails that gives rise to federal

jurisdiction under 18 U.S.C. § 1341. See United States v. Massey, 48 F.3d 1560, 1566

(10th Cir. 1995) (“‘[S]cheme to defraud’ has a larger meaning than an individual act of

fraud.”); see also United States v. Santos, 128 S. Ct. 2020, 2043 (2008) (Alito, J.,

dissenting) (“[T]he unlawful activity in mail fraud . . . is the scheme to defraud, not the

individual mailings carried out in furtherance of the scheme.”). Because the scheme to

defraud was at a “completed phase of an ongoing offense” prior to the specific financial

transactions charged in Counts 18 and 19, the indictment properly charged money

laundering.

2. “Financial Transaction” Argument

Chartock also argues that Count 19 is flawed in a separate manner because of its

inclusion of “the writing of a personal check” as one of the “transactions” coming under

the money laundering statute. Under 18 U.S.C. § 1956, money laundering must involve a

“financial transaction,” which is a “transaction” (as defined in 18 U.S.C. § 1956(c)(3))

that meets the requirements of § 1956(c)(4).10 The term “transaction” is defined to

include a “purchase, sale, loan, pledge, gift, transfer, delivery, or other disposition.” 18

U.S.C. § 1956(c)(3). The definition of “transaction” under the money laundering statute

is “very broad” and for that reason at least one Court of Appeals has stated that “[w]riting

a check drawn on an account maintained [in a financial institution the activities of which

10
Chartock does not contest whether the other requirements of 18 U.S.C. §
1956(c)(4) were met.

18
affect interstate commerce] is . . . a ‘transaction.’” United States v. Jackson, 935 F.2d 832,

841 (7th Cir. 1991). This Court agrees that the term “transaction” includes the writing of

a check, and therefore the indictment properly charged the offense of money laundering

in Count 19.

D. “On or About” Instruction

Chartock finally argues that the District Court’s refusal to instruct the jury that the

government had to prove that an overt act was committed on the specific date charged in

the indictment prejudiced Chartock’s defense. The District Court instructed the jury on

the meaning of the phrase “on or about,” as used in the indictment, as follows: “[T]he

proof need not establish with certainty the exact date of any alleged offense. It is

sufficient if the evidence in the case established beyond a reasonable doubt that an

offense was committed on a date reasonably near the date alleged.” App. at 1693.

Chartock argues that this instruction was prejudicial to his defense because with respect

to the second payment, Chartock introduced evidence that called into question Maggie

Greer’s testimony regarding the dates of the events comprising the second payment.

As stated previously, this Court must exercise plenary review in determining

“‘whether the jury instructions stated the proper legal standard.’” Leahy, 445 F.3d at 642

(quoting Coyle, 63 F.3d at 1245). This Court reviews the refusal to give a requested

instruction for abuse of discretion. Id. at 643. Chartock concedes that generally the

government only needs to prove that an overt act occurred “on or about” a certain date.

However, Chartock argues that this Court has developed a line of cases creating an

19
exception to this general rule whenever the exact date has unique importance in that case.

See, e.g., United States v. Akande, 200 F.3d 136, 141-42 (3d Cir. 1999) (remanding on

basis that “on or about” cannot be used to extend commencement date of conspiracy

backwards to add to restitution); United States v. Frankenberry, 696 F.2d 239, 245 (3d

Cir. 1982) (holding that “on or about” cannot be used where variation from date specified

in indictment would affect whether two counts are multiplicitous). These cases cited by

Chartock have no applicability in this situation, where Chartock was simply trying to

undermine the credibility of a witness, and where neither the jury instructions nor the

District Court prevented Chartock from making such an argument.

Because the “on or about” instruction was legally correct and because the District

Court did not abuse its discretion in refusing to give an alternative instruction, this Court

concludes that the District Court committed no error in giving the “on or about”

instruction.

IV.

We have considered all other arguments made by the parties on appeal, and

conclude that no further discussion is necessary. For the above reasons, the conviction

and sentence of the District Court will be affirmed.

20