UNITED STATES OF AMERICA v. SCOTT ALLINSON
No. 19-3806
United States Court of Appeals for the Third Circuit
March 4, 2022
2022 Decisions 167
AMBRO, KRAUSE, and BIBAS, Circuit Judges
PRECEDENTIAL. Aрpeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 5-17-cr-00390-002). District Judge: Honorable Juan R. Sanchez. Submitted Under Third Circuit L.A.R. 34.1(a) September 28, 2021.
715 Pine Street
Apartment 5
Philadelphia, PA 19106
Counsel for Appellant
Richard P. Barrett
Michelle Morgan
Anthony J. Wzorek
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge
Scott Allinson appeals his convictions of federal programs bribery,
In thorough and well-reasoned opinions and orders, the District Court rejected Allinson‘s contentions. We do the same.2
I.
We start with Allinson‘s sufficiency-of-the-evidence challenge, which we review anew. United States v. John-Baptiste, 747 F.3d 186, 201 (3d Cir. 2014). But out of deference to the jury‘s verdict, we “consider the evidence in the light most favorable to the [G]overnment and affirm the judgment if there is substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt.” Id. (quoting United States v. Benjamin, 711 F.3d 371, 376 (3d Cir. 2013)). We will uphold its decision “as long as it does not ‘fall below the threshold of bare rationality.‘” United States v. Caraballo-Rodriguez, 726 F.3d 418, 431 (3d Cir. 2013) (en banc) (quoting Coleman v. Johnson, 566 U.S. 650, 656 (2012)).
The federal programs bribery statute—the basis of Allinson‘s bribery conviction—makes it a crime to “corruptly give[], offer[], or agree[] to give anything of value to any person, with intent to influence or reward [a government agent] in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.”
In December 2014, Allinson—then an attorney at the law firm Norris McLaughlin—complained to Ruchlewicz about a legal services contract then-Mayor Pawlowski had diverted from Norris McLaughlin to another firm. Allinson complained that he was now unable to “rally [his] troops with their checks.” P-Supp. App. 1234.3 He told Ruchlewicz he was “just talking our dialect of English” and explаined, “[W]e‘ve been unbelievably supportive in the past and now, you know, the work‘s going everywhere . . . but to our shop.” Id. at 1235. He then confirmed with Ruchlewicz that this was “a short[-]term fixable issue.” Id.
The men confirmed this arrangement a few days later. Ruchlewicz assured Allinson that Pawlowski would be “putting [the firm] on the [P]arking [A]uthority” and that Allinson would “get[] credit for it.” Id. at 1241. Allinson warned Ruchlewicz, “[I]f I don‘t get the first call, and the first email, this will get fucked up and I‘m not gonna be responsible for the fuck up.” Id. at 1242. The latter reiterated that Allinson would “get the first call,” to which Allinson responded, “Then, then everything is gonna be smooth, smooth as a baby‘s bottom.” Id.
The two met again the following month. Ruchlewicz noted that he was solving Allinson‘s “[P]arking [A]uthority problems.” Id. at 1153. Allinson stated, “That‘s the only problem, Sam, I‘m telling you right now . . . [i]f you solve that problem, you get the golden goose. . . . You get everything.” Id. at 1153–54. He cautioned Ruchlewicz, however, “The money flow comes from me. The golden goose comes to me.” Id. at 1154. Ruchlewicz confirmed that Allinson would receive credit for the contract but reiterated that Pawlowski wanted him to raise money for the Mayor‘s campaign. Allinson replied, “Well of course I am going to raise money.” Id. at 1155.
The next week, Allinson complained to Fleck and Ruchlewicz about “sore feelings” at the firm and told them that the Parking Authority job would “get the checkbooks back out.” Id. at 1168. Referring to a specific fundraising request from Pawlowski, Allinson noted that “for us to come up with [$12,500], I think that‘s going to be a really heavy stretch unless I can say hey, good news, this is . . . the mayor‘s way of finding a good spot for us.” Id. at 1169.
When Ruchlewicz relayed to Pawlowski Allinson‘s apparent reluctance to donate, the Mayor was incensed. He noted that he had “given [Allinson] millions of dollars” and declared, “[He] will get nothing now.” Id. at 1296–97. “You know, fuck them,” he continued. Id. at 1297. “And . . . I‘m not gonna make Somach solicitor or anything. Screw it all.” Id. Ruchlewicz asked Pawlowski not to do anything yet, as he and Fleck would be seeing Allinson again shortly.
At their next meeting, Allinson reiterated to Fleck and Ruchlewicz that if the firm was to receive the Parking Authority contract, he would “get a hundred perсent of . . . the kind of credit that turns into money that goes out of my checkbook where you want it to go.” Id. at 1178. He told them that he and the firm‘s chairman, Matthew Sorrentino, would ensure the firm contributed to Pawlowski‘s campaign, noting that “Matt understands everything,” and “Matt and I have always spoken . . . the same language.” Id. at 1179.
On the day of Pawlowski‘s Mardi Gras fundraiser, Allinson and Ruchlewicz again discussed the Parking Authority contract. Allinson reiterated the importance of receiving firm credit for the work. Ruchlewicz responded, “[Y]ou know what the mayor cares about. And the mayor‘s
A few weeks later, Allinson told Fleck and Ruchlewicz that he would tell his law partners, “If you guys are going to handle the [City] work and deal with all that stuff, you‘re gonna have to work with [Fleck] and [Ruchlewicz] on . . . cobbling some money together. This isn‘t like we‘re being hired because we are good guys, it‘s not the way this shit works. . . . It just isn‘t. I don‘t care how good you are.” Id. at 1251. When Ruchlewicz later checked in with Pawlowski about the Parking Authority contract, Pawlowski told him, “I‘m working on it.” Id. at 1214. Ruchlewicz told Pawlowski that Allinson would need to get the credit for bringing in the contract, as Allinson controlled the firm‘s political contributions. Pawlowski replied, “I got you.” Id. at 1215.
Pawlowski then met with Allinson, Fleck, and Sorrentino (the firm chairman who “spoke[] the same language” as Allinson) to pitch them on a nascent senatorial campaign, and asked the firm to raise $25,000 before his June 30th fundraising deadline. Allinson later complained to Ruchlewicz that this was “a lot of fucking money when you‘re getting absolutely zero back from the [C]ity. I mean, I mean when I tell you bone dry, bone fucking dry.” Id. at 1247.
Norris McLaughlin contributed $17,300 to Pawlowski‘s campaign prior to the fundraising deadline. Fleck informed Pawlowski of the contribution and asked if they could now appoint Somach as Parking Authority Solicitor. Pawlowski told Fleck that he did not control the board‘s decisions but could talk to them. The men then discussed plans for getting rid of the current Solicitor.
Viewed in the light most favorable to the Government, this evidence showed the parties’ plan to steer the Parking Authority contract to Allinson‘s firm in exchange for campaign contributions and was thus sufficiеnt to support Allinson‘s bribery conviction. See
Allinson first contends the evidence did not show an explicit quid pro quo, that is, that he gave or agreed to give campaign funds with the specific intent to influence Pawlowski to take a specific official action. See McCormick v. United States, 500 U.S. 257, 273 (1991).4 He suggests that, while Fleck and Ruchlewicz repeatedly solicited funds from him, he
Allinson further submits that there was insufficient evidence of an “official act” as that term is defined in McDonnell v. United States, 136 S. Ct. 2355, 2367–69 (2016). The McDonnell Court interpreted the general federal bribery statute, which “makes it a crime for ‘a public official or person selected to be a public official, directly or indirectly, corruptly’ to demand, seek, receive, accept, or agree ‘to receivе or accept anything of value’ in return for being ‘influenced in the performance of any official act.‘” Id. at 2365 (quoting
The parties agreed prior to trial that the Government needed to prove that Allinson intended to influence an “official act” per McDonnell. We thus assume, but do not decide, that the Government had to show Allinson bought official acts. It met this burden. The Parking Authority solicitorship surely qualifies as a specific matter that would “be pending . . . before [a] public official, in such official‘s official capacity.” Id. at 2365; see also United States v. Repak, 852 F.3d 230, 253 (3d Cir. 2017) (the awarding of a contract by a redevelopment agency‘s board of directors constitutes a “matter“). And a reasonable jury could find from Allinson‘s statements that he intended Pawlowski do more to help obtain the contract than merely “arrange a meeting” or perform some other informal action on the firm‘s behalf. The above conversations indicate Allinson‘s intent that Pawlowski use his public office to facilitate installing a Norris McLaughlin attorney as Parking Authority Solicitor. See, e.g., P-Supp. App. 1241–42 (Ruchlewicz states that Pawlowski would “put[ the firm] on the [P]arking [A]uthority” and that Allinson would get the credit, and Allinson responds, “[I]f I don‘t get the first call, and the first email, this will get fucked up“). The evidence shows that this was Pawlowski‘s understanding, as well. See, e.g., id. at 1296–97 (after learning of Allinson‘s reluctance to contribute, Pawlowski notes, “I‘m not gonna make Somach solicitor or anything. Screw it all.“); id. at 1288–89 (Pawlowski explains that he has “gotta get rid” of the then-
Finally, Allinson submits the Government‘s evidence was insufficient to prove that the sought-after contract was worth $5,000 or more, as required for a federаl programs bribery conviction. See
Moreover, the amount of money Allinson agreed to contribute to Pawlowski‘s campaign indicates that the value of the proposed transaction exceeded $5,000. See United States v. Zwick, 199 F.3d 672, 690 (3d Cir. 1999) (finding a transaction to be worth more than $5,000 where the public official helped obtain permits in exchange for a $15,000 donation), abrogated on other grounds, Sabri v. United States, 541 U.S. 600 (2004). Allinson counters that the amount of the bribe cannot substantiate the transaction value where the subject of a transaction is a tangible interest. However, even assuming a legal services contract—and the internal firm credit Allinson hoped to receive frоm that contract—is “tangible,” we have never said that the amount of a bribe cannot prove the value of the transaction where parties seek to exchange tangible assets. As Allinson notes, courts look to the bribe amount as one method for valuing an intangible asset, such as freedom for a prisoner, see United States v. Townsend, 630 F.3d 1003, 1011 (11th Cir. 2011), or a conjugal visit, see United States v. Marmolejo, 89 F.3d 1185, 1193–94 (5th Cir. 1996). But we have found no holding that the bribe amount is irrelevant in other contexts, and we decline to hold so here.6
In sum, the Government‘s evidence easily suffices to support Allinson‘s bribery conviction.
II.
Wе next consider Allinson‘s argument that the indictment, which alleged a single conspiracy among Allinson and others, impermissibly varied from the evidence at trial that, he submits, proved only multiple, unrelated conspiracies.7
For a conspiracy, the Government had to establish an agreement to achieve an unlawful end, knowing and voluntary participation by the co-conspirators, and the commission of an overt act to further the agreement. United States v. Gonzalez, 905 F.3d 165, 179 (3d Cir. 2018). The evidence recounted above was sufficient for a jury to find that Allinson, Pawlowski, Fleck, and Ruchlewicz agreed to exchange
circumstances of the transaction.” United States v. Delgado, 984 F.3d 435, 447 (5th Cir. 2021). If, for instance, an undercоver government agent bribes a public official with $5,000, the price the agent is willing to pay for an asset may not be an accurate proxy for its market value.
But he does raise a separate challenge. In its indictment, the Government charged Allinson with a single, “hub-and-spokes” style conspiracy involving not just Pawlowski and his political consultants, but also several other private vendors vying for governmеnt contracts. The evidence, Allinson contends, failed to show a single endeavor among all these alleged participants and instead showed several distinct schemes. See United States v. Kemp, 500 F.3d 257, 287–88 (3d Cir. 2007). In other words, while the Government may have proven separate agreements between the hub (Pawlowski) and the various spokes (the vendors) to exchange campaign funds for contracts, it failed to prove a “rim” connecting the spokes to one another. See id.
Where an indictment charges a single conspiracy but the evidence at trial proves only multiple, separate conspiraciеs, a variance occurs. Id. at 287. When faced with a variance argument, we must first decide “whether there was sufficient evidence from which the jury could have concluded that the government proved the single conspiracy alleged in the indictment.” United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989). But unlike a “pure” sufficiency-of-the-evidence challenge, a successful variance challenge requires us to vacate a conviction only where the discrepancy between the indictment and the proof at trial prejudiced the defendant‘s substantial rights. Kemp, 500 F.3d at 287 n.4, 291.
To assess whether a single conspiracy, rather than multiple conspiracies, existed, we look for sufficient evidence of: (1) a common goal among the conspirators; (2) a common scheme wherein “the activities of one group . . . were ‘necessary or advantageous to the success of another aspect of the scheme or to the overall success of the venture‘“; and (3) overlap in the dealings of the conspiracy‘s participants. Kelly, 892 F.2d at 259 (quoting United States v. DeVarona, 872 F.2d 114, 118–19 (5th Cir. 1989)).
The Government argues its evidence proved a single conspiracy between Allinson and the other vendors. It asserts they all sought the same end—public contracts—the achievement of which depended on Pawlоwski‘s satisfaction and success. It submits Allinson was aware that others contributed to Pawlowski‘s campaigns with the goal of influencing his official conduct. And it suggests that their enterprise was cooperative and mutually interdependent, as each had a shared motive in ensuring Pawlowski‘s electoral success so all could continue calling on his influence to obtain government work.
This single-conspiracy theory is appealing in the abstract; however, it finds little support in the record. There is no evidence that any of the alleged conspirators were motivated to contribute for any purpose other than to obtain their own individual contracts. See Kemp, 500 F.3d at 288 (“[A]lthough each of these alleged spoke conspiracies had the same goal, there was no evidence that this was a common goal.” (emphasis in original) (quoting United States v. Chandler, 388 F.3d 796, 811 (11th Cir. 2004))). The record instead indicates that they gave campaign funds in exchange for their contracts because that is what Pawlowski and his
But even if the Government‘s proofs were insufficient to show a single conspiracy, our inquiry does not stop there. We must also determine whether Allinson was prejudiced by the variance between the indictment and the evidence. See Kemp, 500 F.3d at 291. As he was not, his conviction must stand.
In arguing otherwise, Allinson contends the variance affected his right “not to be tried en masse for the conglomeration of distinct and separate offenses committed by others.” Id. (quoting United States v. Schurr, 775 F.2d 549, 553 (3d Cir. 1985)). Put simply, he alleges the separate conspiracy of Group A spilled over to Group B such “that the jury might have been unable to separate offenders and offenses and easily could have transferred the guilt from one alleged co-schemer to another.” Schurr, 775 F.2d at 557 (quoting United States v. Camiel, 689 F.2d 31, 38 (3d Cir. 1982)).
Where, however, “the government compartmentalize[s] its presentation . . . as to each defendant separately” and the court “charge[s] the jury to consider the evidence against each defendant separately,” there is little risk of spillover. United States v. Greenidge, 495 F.3d 85, 95 (3d Cir. 2007). That standard was met here. The evidence against Allinson was segregated, coming in through the testimony of Ruchlewicz and consisting of a series of recorded conversations, all of which involved or concerned Allinson. There was, moreover, no suggestion that evidence relevant to Pawlowski‘s agreements with other campaign contributors was relevant to proving Allinson‘s role in the conspiracy. See Kemp, 500 F.3d at 292 (no prejudice where the government “rigorously segmented its proofs and ‘never suggested in any way that any piece of evidence related to [thе separate defendants] was relevant to establish [the appellants‘] participation in the conspiracy‘“). And the District Court instructed the jury that “[y]our decision on any one defendant or any one offense, whether guilty or not guilty, should not influence your decision on any one of the other defendants or offenses,” A-Supp. App. 16–17, and that “Allinson [was] not charged with conspiring to commit any offense other than federal programs bribery,” id. at 27.
We recognize that the risk of prejudice “increases along with the number of conspiracies and individuals that make up the wrongly charged single conspiracy.” Kemp, 500 F.3d at 292 (citing Kotteakos v. United States, 328 U.S. 750, 766–67 (1946)). The cоnspiracy charged in this case included over ten alleged co-conspirators and seven distinct sub-schemes, only one of which involved Allinson. Even so, the Government‘s efforts at trial were reasonably calculated to prevent guilt transference, and we see no reason to think they were
III.
Allinson also asserts that the Government constructively amended its indictment with respect to the bribery charge. A constructive amendment occurs “when evidence, arguments, or the district court‘s jury instructions effeсtively ‘amend[] the indictment by broadening the possible bases for conviction from that which appeared in the indictment.‘” United States v. McKee, 506 F.3d 225, 229 (3d Cir. 2007) (quoting United States v. Lee, 359 F.3d 194, 208 (3d Cir. 2004)). We exercise a fresh review over such claims. United States v. Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010). If we determine that a constructive amendment occurred, it is “a per se violation of the [F]ifth [A]mendment‘s grand jury clause.” United States v. Syme, 276 F.3d 131, 148 (3d Cir. 2002) (quoting United States v. Castro, 776 F.2d 1118, 1121–22 (3d Cir. 1985)).
The bribery charge here alleges that Allinson
corruptly gave, offered to give,
agreed to give, caused, and
attempted to cause others to give,
something of value, that is,
campaign contributions, to
defendant EDWIN PAWLOWSKI
and his political action committees
. . . with intent to influence and
reward defendant PAWLOWSKI
in connection with the business,
transaction, and series of
transactions of the City of
Allentown involving something of
value of $5,000 or more, namely,
legal services contracts awarded to
[Norris McLaughlin].
App. 141. Allinson argues that the indictment‘s use of “awarded” refers to an alleged quid pro quo based only on legal-services contracts already given or awarded in the past, whereas at trial the Government asserted that the jury could convict Allinson even if no such work had been awarded to his firm.
Again we disagree. Allinson‘s reading of the charge is much too cramped, that is, it encompasses both past and prospective legal work to his firm. It indicates that Allinson “inten[ded] to influence” Pawlowski so legal services contracts would be awarded to the firm and intended to “reward” him for contracts already awarded to the firm. Id. Indeed, the bribery charge expressly incorporates Allinson‘s conduct as alleged in the conspiracy charge, such as its allegation that Allinson made and caused others to make campaign contributions in exchange for future contracts. See id. at 105 ¶ 33 (alleging he “made campaign contributions and caused others to make campaign contributions . . . in return for which [he] received, and
IV.
Next, Allinson submits that the District Court erred in denying him a new trial based on an alleged misstatement of law in the Government‘s closing argument. We review this decision for abuse of discretion. See United States v. Wood, 486 F.3d 781, 786 (3d Cir. 2007). “To find that the court abused its discretion . . . we must first be convinced that the prosecution did in fact misconduct itself.” Id. (quoting United States v. Rivas, 479 F.3d 259, 266 (3d Cir. 2007)). If so, we assess whether the prosecution‘s improper statement can be excused as harmless error. United States v. Gambone, 314 F.3d 163, 177 (3d Cir. 2003).
The Government‘s closing argument contained the following statement:
Bribery happens with a wink and a
nod and sometimes a few words,
an understanding between two
people, we all know what‘s
happening here. You‘re giving me
this, I‘m giving you that.
App. 2473. According to Allinson, this line suggested to the jury that the quid pro quo agreement between the parties could be implicit—a lower burden than proving an explicit quid pro quo. See United States v. Antico, 275 F.3d 245, 257–58 (3d Cir. 2001).
But the Government‘s statement is consistent with the law, which recognizes that bribery can occur through “knowing winks and nods.” See Evans v. United States, 504 U.S. 255, 274 (1992) (Kennedy, J., concurring). Nowhere in its summation did the Government use the term “implicit” or suggest that “a wink and a nod” would, standing alone, be sufficient to convict. Rather, it repeatedly stated that it was required to show “a cleаr, unambiguous understanding between the parties that the campaign contribution was being offered in exchange for the official action by the mayor“—that is, an explicit quid pro quo. App. 2472; see also id. (informing the jury that the quid pro quo must be “clear and unambiguous, leaving no uncertainty about the terms of the bargain“). This same statement of the law was echoed in the jury instructions, which were approved by all parties. A-Supp. App. 45 (“The explicitness requirement does not require an official‘s specific statement that he will exchange official action for a contribution, but rather requires that the quid pro quo be clear
The Govеrnment‘s closing remark was not improper when considered in context, and the District Court did not abuse its discretion in denying Allinson a new trial because of it. In any event, the Government‘s case against Allinson consisted of far more than mere “winks” and “nods.” As explained above, its evidence proved an explicit quid pro quo. Thus, even were its closing statement improper, any conceivable error was harmless.
V.
We last consider Allinson‘s argument that the District Court erred in denying the motion to sever his trial from Pawlowski‘s. Again we review the Court‘s decision for abuse of discretion. United States v. Walker, 657 F.3d 160, 170 (3d Cir. 2011).
“Ordinarily, defendants jointly indicted should be tried together to conserve judicial resources.” United States v. Eufrasio, 935 F.2d 553, 568 (3d Cir. 1991). Yet Allinson (continuing with his defense theme of prejudicial spillover) contends that a joint trial was improper because the “sweeping charges against Pawlowski and others” led the jury to convict him. Allinson Br. 41. But “[n]either a disparity in evidence, nor introducing evidence more damaging to one defendant than others[,] entitles seemingly less culpable defendants to severance.” Eufrasio, 935 F.2d at 568. Allinson must instead show real prejudice arising from the joint trial either compromising his trial rights or preventing the jury “from making a reliable judgment about guilt or innocence.” United States v. Lore, 430 F.3d 190, 205 (3d Cir. 2005) (quoting United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005)). He fails to do so.
The District Court instructed the jurors that “[e]ach offense and each defendant should be considered separately.” A-Supp. App. 17. It told them that evidence “admitted solely against Edwin Pawlowski cannot be considered by you in determining the guilt or the innocence of Scott Allinson,” and that “[y]our decision on any one defendant or any one offense, whether guilty or not guilty, should not influence your decision on any one of the other defendants or offenses.” Id. at 16–17. “[J]uries are presumed to follow” such limiting instructions. Zafiro v. United States, 506 U.S. 534, 540–41 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 211 (1987)).
This case was not, moreover, so complex that the jury could not “reasonably be expected to compartmentalize the evidence” against Allinsоn. United States v. Ward, 793 F.2d 551, 556 (3d Cir. 1986) (quoting United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir. 1986)). As previously discussed, the evidence against him was segregated and largely consisted of his own recorded statements. Allinson fails to show “clear and substantial prejudice” resulting from the joint trial, and thus he fails to meet the high bar required to gain a severance. Urban, 404 F.3d at 775.
* * * * *
The jury here was privy to private conversations in which Allinson and Pawlowski repeatedly expressed their intent for Norris McLaughlin to receive the Parking Authority contract and Allinson the credit, all in exchange for political
Moreover, while we sеe little evidence in the record to support the Government‘s single-conspiracy theory, any variation between the indictment and the evidence was not prejudicial. The Government‘s efforts at trial were sufficient to avert the risk that jurors might transfer guilt from the alleged co-schemers to Allinson. And as to his other claims of error, there was no impermissible amending of the bribery charge, the Government‘s closing statement was not improper, and Allinson was not prejudiced by having his trial remain joined with that of Pawlowski. We thus affirm.