2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-3-2002

USA v. Milan

Precedential or Non-Precedential: Precedential

Docket No. 01-2603

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"USA v. Milan" (2002). 2002 Decisions. Paper 549.

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PRECEDENTIAL 

 Filed September 3, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 01-2603 

UNITED STATES OF AMERICA 

v. 

MILTON MILAN 

 Appellant 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.N.J. Crim. No. 00-194) 

District Judge: Honorable Joel A. Pisano 

Argued May 20, 2002 

BEFORE: BECKER, Chief Judge, 

GREENBERG, Circuit Judge, and 

BARZILAY, Judge, U.S. Court of International Trade* 

(Filed: September 3, 2002) 

 Richard Coughlin (argued) 

 Julie A. McGrain 

 Office of the Federal Public Defender 

 800 Hudson Square 

 Suite 350 

 Camden, NJ 08102 

 Attorneys for Appellant 

_________________________________________________________________ 

*Honorable Judith M. Barzilay, Judge, United States Court of 

International Trade, sitting by designation. 

 

 Robert J. Cleary 

 United States Attorney 

 970 Broad Street, Room 700 

 Newark, N.J. 07102-2535 

 Norman Gross (argued) 

 Assistant United States Attorney 

 George S. Leone (argued) 

 Chief, Appeals Division 

 Office of the United States Attorney 

 Camden Federal Building and 

 United States Courthouse 

 401 Market Street, Fourth Floor 

 Camden, NJ 08101 
 Attorneys for Appellee 

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

This case comes on before this court on appeal from a 

final judgment of conviction and sentence entered in the 

district court following defendant-appellant Milton Milan’s 

conviction by a jury on 14 counts of mail fraud, wire fraud, 

money laundering, and related criminal conspiracies in part 

for his activities undertaken while in public office. The 

district court sentenced Milan, the former mayor and city 

council president of the City of Camden, New Jersey, to 87 

months imprisonment. 

On appeal, Milan advances three grounds to overturn his 

conviction on all counts. First, he contends that under 

Matson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), 

the district court erred in finding that the government’s 

decision to exercise a peremptory challenge to a juror was 

not motivated by discriminatory intent. In the alternative, 

Milan maintains that the district court misapplied the legal 

standards the Supreme Court enunciated in Batson by 

improperly deferring to the prosecution’s proffered 

legitimate justifications for using three of four of its 

peremptory challenges to strike African-American jurors 

from the panel. Lastly, Milan suggests that the district 

 2 

 

court erred by using the phrase "moral certainty" in its jury 

charge on reasonable doubt. 

Milan also challenges specific counts of his conviction. 

First, he argues that we should reverse his conviction on 

counts 3 and 9 (wire fraud and conspiracy arising out of 

his illegal receipt of monies and other benefits during his 

tenure in office) because the government premised its case 

largely on testimony from a cooperating witness without 

disclosing material impeachment evidence (tape recorded 

conversations) in violation of Brady v. Maryland , 373 U.S. 

83, 83 S.Ct. 1194 (1963), which imposes a duty on the 

government to provide the defense with potential 

exculpatory or impeachment evidence. Second, Milan 

argues that we should reverse his conviction on counts 3, 

9, 15, 16, and 17 because the government improperly 

vouched for the credibility of key witnesses whose 

testimony advanced Milan’s convictions on those counts. 

Finally, Milan maintains that we should vacate his 

sentence and remand the case for resentencing because the 

district court erred in applying a 3-level upward departure 

for Milan’s acts of public corruption under U.S.S.G. 

S 2C1.7, Application Note 5, to the final combined offense 

level after grouping rather than to the offense level 

established for the public corruption charges only. 
The panel unanimously agrees that the judgment of 

conviction should be affirmed on all counts and thus 

unanimously joins in all aspects of the opinion except for 

section II. E. "3-Level Upward Departure." Judge 

Greenberg, however, believes that the judgment should be 

reversed to the extent that it imposed the sentence and 

thus is filing a separate opinion dissenting from the 

affirmance of the sentence. 

I. BACKGROUND 

A. Milan’s Crimes in his Private Capacity 

The evidence at the trial demonstrated the following.1 In 

_________________________________________________________________ 

1. We point out that Milan does not challenge the sufficiency of the 

evidence to support his conviction. 

 3 

 

October 1992, Milan formed the Atlas Contracting 

Company ("Atlas") with his friend, Gholam H. Darakhshan, 

to undertake commercial and residential construction 

projects in the Camden area. On August 11, 1994, Atlas 

obtained a contract for the construction of 13 homes at 

Arthur’s Court in Camden. Inasmuch as the contract 

required Atlas to secure a performance and payment bond, 

it entered into a surety arrangement with Amwest Surety 

Insurance Company in which Amwest agreed to issue 

bonds for each phase of construction. Amwest, however, 

required Atlas to post collateral as a condition for Amwest 

issuing the bonds. 

To satisfy this obligation to post security, Milan and 

Darakhshan borrowed $65,000 in cash from Jose Rivera, 

the owner of an automotive parts store which functioned in 

part as a front to launder the profits of local drug dealers. 

Realizing that Rivera had obtained the loan money from 

nefarious activities, Milan and Darakhshan concocted a 

scheme to utilize the narcotics-related proceeds without 

arousing the suspicions of the Internal Revenue Service to 

which, by law, domestic currency transaction reports for 

cash deposits of $10,000 or more must be sent. 

Specifically, they divided the cash into amounts of less than 

$10,000 which they distributed to friends and relatives 

who, in turn, transferred the money to Atlas in the form of 

bank checks or personal checks. Milan and Darakhshan 

also deposited some of the cash directly into an Atlas 

account. They then purchased a $60,900 certificate of 

deposit from a bank in Camden and assigned it to Amwest 

as collateral security. Subsequently, over the course of a 

few months, Milan and Darakhshan issued a series of 

checks in amounts of less than $10,000 made out from 

Atlas to themselves or to various friends and family 

members as ostensible "loan repayments."2 Milan and 

Darakhshan eventually cashed the checks and repaid 

Rivera the $65,000 together with $10,000 in interest. 
In addition to money laundering, Milan and Darakhshan 

used Atlas to perpetrate insurance fraud. In June 1994 and 

_________________________________________________________________ 

2. Milan and Darakhshan wrote the words "loan repayments" on the 

memo lines of some checks. 

 4 

 

February 1995, Atlas entered into an agreement with AT&T 

Capital Leasing Corporation for the lease of two computers, 

two printers, and one copy machine. Atlas then secured 

commercial property insurance from Selective Insurance 

Company to protect against loss or damage to the 

machines. 

On December 31, 1995, Milan and Darakhshan staged a 

sham burglary of the Atlas office, removing property and 

breaking a window. They later filed a false stolen property 

report with the Camden police and a lost property 

worksheet with the insurance company. Atlas received 

$4,743.50 from Selective in satisfaction of the false claim. 

Milan kept one of the computers for personal use until 

August 1997, when he sold it to a former student intern. 

B. Milan’s Crimes as a Public Official 

Milan was elected a member of the Camden city council 

on November 7, 1995, and was elected its president on 

January 1, 1996. On May 13, 1997, Milan was elected 

mayor of Camden, a position to which he was sworn in on 

July 1, 1997. 

In March 1996, Milan met Daniel Daidone, an associate 

of Ralph Natale, a notorious organized crime boss in 

Philadelphia. Natale previously had recruited Daidone and 

Caesar Ortiz, a Puerto-Rican businessman and electrical 

contractor, to manage and operate Trans-Aero, a 

government certified minority-owned business enterprise 

which was to compete for government contracts on Natale’s 

behalf. 

Correctly anticipating that Milan would be receptive to 

accepting kickbacks in exchange for helping Trans-Aero 

secure business projects in Camden, Daidone delivered an 

initial payment of $500 in cash to Milan, a transaction he 

reported to Natale. Thereafter, Daidone, acting on Natale’s 

behalf, continued to deliver periodic bribes to Milan 

(occasionally at his office in Camden City Hall) until Milan’s 

arrest in June 1998. All told, Milan received between 

$30,000 and $50,000 in cash, including a $1,433 payment 

toward a January 1998 Florida vacation for himself and his 

then fiance. Milan, in turn, did numerous favors for Natale 

and his organized crime associates, including lobbying on 

 5 

 

their behalf to secure federally-subsidized construction 
contracts in a Camden empowerment zone, attempting to 

contact the mayor of Cherry Hill, New Jersey, to obtain a 

liquor license for a restaurant owned by one of Natale’s 

associates, and arranging a meeting between Natale’s 

associates and government officials presiding over Camden 

waterfront renovation projects.3 

In addition to cash, Milan received other improper 

benefits during his tenure in public office. On December 

16, 1996, Milan arranged to have the title of a 1990 

Chevrolet Lumina Van transferred to his fiance from Nick’s 

Towing, an outfit which provided towing services to the City 

of Camden.4 Milan also obtained approximately ten months 

free use of a 1996 GMC Jimmy truck leased to Dominick 

Monaco, the owner of Nick’s Towing. On March 27, 1997, 

the city council of Camden awarded a contract to Nick’s 

Towing to provide towing services for a two-year term at a 

contract price not to exceed $480,000. Milan did not 

disclose publicly his receipt of these gifts from Nick’s 

Towing on his state-mandated financial disclosure 

statements. 

In June 1997, the James B. Ryan Air Conditioning 

Company executed a three-year contract with the City of 

Camden for the servicing and maintenancing of air 

conditioning and heating systems in various city-owned 

buildings. In May 1998, at Milan’s request, the company 

installed an air conditioning system at Milan’s personal 

residence. Milan did not pay for these services and did not 

disclose his receipt of them on his financial disclosure 

statements. The services, valued at $3,346, took two men 

six days to complete. 

In April 1998, a concrete recycling company, Delaware 

River Recycling, applied to the Camden County Solid Waste 

Advisory Council for a permit to operate a recycling facility. 

That same month, Milan asked Robert Casey, the owner of 

Delaware River Recycling, to do home improvement work at 

_________________________________________________________________ 

3. The Cherry Hill mayor did nothing improper and did not support the 

application. 

4. Nick’s effectuated the transfer through a third party. 

 6 

 

Milan’s private residence. Casey obliged, sending a work 

crew to tear down a garage and remove a tree. Casey also 

paid $700 for the installation of new carpeting at Milan’s 

home. Milan, who did not pay for these services, wrote a 

letter in his official capacity on September 3, 1998, 

supporting the application of Delaware River Recycling. 

Casey forwarded the letter to the Camden County Solid 

Waste Advisory Council. As in the other instances we have 

recounted with respect to improper benefits, Milan did not 

disclose his receipt of these gifts from Casey. 

In July 1998, Milan received an estimate from R&G Home 
Improvement for the installation of new windows at his 

residence. R&G, owned and operated by Ralph Cruz Sr. and 

Ralph Cruz Jr., provided a figure that included costs for 

materials and supplies but not for labor, with the 

anticipation that Milan in turn would take the necessary 

steps to expedite payments owed to R&G for work it had 

done for the City of Camden. Sure enough, on August 14, 

1998 (five days after R&G submitted its estimate), Milan 

arranged a meeting among himself, Ralph Cruz Sr., Ralph 

Cruz Jr., and the director of the Camden Housing Services 

Department to discuss the unpaid bills. From September 

until December 1998, R&G installed approximately 25 new 

windows at Milan’s home without charging Milan for the 

$1,800 in labor costs it incurred. 

Milan abused his public office in other, more creative 

ways. In April 1997, he established with the New Jersey 

Election Law Enforcement Commission a Joint Candidates 

Committee ("JCC") to raise campaign funds for three city 

council candidates politically affiliated with him. Milan 

installed his aide, Milton Bradley, as JCC treasurer. Milan 

later informed Bradley that he and several of his political 

supporters would be taking a celebratory vacation to Puerto 

Rico after the May 1997 city council elections. He then 

directed Bradley to finance the trip with funds from the 

JCC. Milan and Bradley devised a scheme to disguise the 

disbursement as a legitimate business expense for the JCC. 

They asked Mark Willis, the owner of the Camden office 

building in which Milan’s mayoral campaign headquarters 

was located, to draft a fake lease to demonstrate that 

monthly lease payments were due from Milan’s campaign 

 7 

 

even though Milan’s campaign was using Willis’s office 

space without charge. 

On May 1, 1997, flights and hotel reservations for this 

trip were booked through a travel agency for 15 people, 

including Milan and his fiance. The group vacationed in 

Puerto Rico from May 16 to May 20, 1997, with expenses 

charged on the personal American Express account of a 

Camden attorney. Upon his return, Milan had Bradley draw 

a check for $7,500 on the JCC bank account payable to 

Willis’s management company. On June 4, Willis deposited 

the check into his corporate bank account and, through a 

series of transactions with third parties, obtained $7,500 in 

cash proceeds from the check. On June 12, Willis gave 

$5,000 to Bradley and $2,500 to Milan. Bradley, in turn, 

gave the $5,000 to the attorney as a partial repayment for 

vacation expenses. 

As a public official, Milan was required under New Jersey 

state law to complete an annual financial disclosure 

statement detailing his business interests and sources of 

income. Milan completed, signed, and mailed those forms 

in 1997, 1998, and 1999, but, as we have indicated, failed 

to mention his receipt of the benefits we have described. 
C. Procedural History 

On March 23, 2000, a grand jury sitting in Camden 

returned a 19-count indictment against Milan. A 

superseding indictment was returned on July 12, 2000. 

Counts 1 through 8 charged a scheme to defraud the public 

of Milan’s honest services as a public official in violation of 

the mail and wire fraud acts, 18 U.S.C. SS 1341, 1343, 

1346, and 2. Specifically, counts 1, 4, and 8 involved the 

mailing of Milan’s financial disclosure statements, count 2 

involved a phone call between Daidone and Milan (during 

which Milan asked Daidone to supply him with 

"resources"), count 3 involved a January 2, 1998 fax 

transmission from a travel agency concerning Milan’s trip 

to Florida, and counts 5 and 6 involved Milan’s letter to 

Robert Casey supporting the application of Delaware River 

Recycling for a recycling permit. 

Count 9, involving conduct while Milan was in public 

office from March 1996 until June 1998, charged a 

 8 

 

conspiracy to travel and use interstate facilities to solicit 

and accept bribes to influence a public servant in violation 

of 18 U.S.C. S 371. Counts 10 and 11 charged Milan with 

conspiracy and extortion under 18 U.S.C. S 371 and 18 

U.S.C. S 1951(a), alleging that Milan threatened to remove 

the municipal public defender from office unless he 

contributed $5,000 to a political action committee aligned 

with Milan. 

Counts 12, 13, and 14 charged Milan with using political 

campaign contributions to pay for the Puerto Rico vacation 

in violation of the mail and wire fraud acts, 18 U.S.C. 

SS 1341, 1343, 1346, and 2. Specifically, count 12 was 

predicated on a phone call from a domestic travel agency to 

a hotel in Puerto Rico, count 13 on a computer request for 

an airline ticket from an airline in Tulsa, Oklahoma, and 

count 14 on a mailed $7,000 check payable to a credit card 

company. 

Counts 15, 16, and 17 charged a conspiracy to structure 

currency transactions in violation of 18 U.S.C.S 371, a 

conspiracy to commit money laundering in violation of 18 

U.S.C. S 1956(h), and money laundering in violation of 18 

U.S.C. S 1957(a). These charges pertained to Milan’s 

financial transactions involving the $65,000 loan from Jose 

Rivera to Atlas Contracting Company. Finally, counts 18 

and 19 charged mail fraud in violation of 18 U.S.C.SS 1341 

and 2, predicated on Milan’s use of the mail in connection 

with his staged burglary of Atlas to collect insurance 

proceeds. 

Jury selection commenced on October 23, 2000. During 

the final selection process Milan’s attorney raised an 

unsuccessful Batson objection to the government’s use of 

its peremptory challenges. The evidence portion of the trial 

began on November 6, 2000, and was concluded on 
December 21, 2000. The jury convicted Milan on all counts 

except 2, 5, 6, 10, and 11.5 

Following the verdict, the court at Milan’s request 

removed his trial attorney and appointed the Federal Public 

_________________________________________________________________ 

5. The jury acquitted Milan on counts 10 and 11 and was unable to 

reach a verdict on counts 2, 5, and 6. 

 9 

 

Defender to file post-verdict motions and represent Milan at 

sentencing. In May 2001, Milan’s new attorney wrote a 

letter to the prosecutor requesting copies of taped 

conversations (or evidence documenting their disclosure to 

his prior attorney) of Natale during his incarceration from 

October to December 1999. The tapes, recorded by the 

Bureau of Prisons, allegedly indicated, among other things, 

that Natale expected an early release as a result of his 

agreement to cooperate with the government. Milan 

subsequently moved for a new trial on the counts to which 

Natale’s testimony was directed (3 and 9) on the grounds 

that the government’s failure to disclose the tapes, germane 

for impeachment purposes at Milan’s trial, violated Brady 

and the Jenks Act, 18 U.S.C. S 3500. The district court 

denied the motion, concluding that the tapes were 

sufficiently immaterial such that their non-disclosure did 

not undermine the integrity of the verdict to warrant a new 

trial. 

On June 15, 2001, the district court sentenced Milan to 

87 months imprisonment, in part arriving at this figure by 

departing upwards 3 levels by reason of Milan’s pervasive 

and systematic corruption of a government function. Milan 

unsuccessfully objected to the court’s sequencing 

methodology, arguing that the departure should have been 

added only to the counts grouped as corruption-related 

rather than to the combined, total offense level calculated 

after grouping. If the court had accepted Milan’s argument 

his sentence range would have been lower. The court 

entered the judgment of conviction and sentence on June 

15, 2001, and Milan subsequently filed a timely appeal. We 

have jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. 

S 3742(a), eand the district court exercised subject matter 

jurisdiction pursuant to 18 U.S.C. S 3231. 

II. DISCUSSION 

A. Batson Challenges 

In one of his two Batson challenges, Milan argues that 

the district court erred in concluding that the government’s 

decision to strike one of the jurors was not motivated by 

discriminatory intent. We review a court’s finding of fact on 

 10 

 
this issue for clear error, United States v. Uwaezhoke, 995 

F.2d 388, 394 (3d Cir. 1993), and thus will accept its 

factual determination unless it "either (1) is completely 

devoid of minimum evidentiary support displaying some 

hue of credibility, or (2) bears no rational relationship to the 

supportive evidentiary data." Haines v. Liggett Group, Inc., 

975 F.2d 81, 92 (3d Cir. 1992) (quoting Krasnov v. Dinan, 

465 F.2d 1298, 1302 (3d Cir. 1972)). 

Owing to the high publicity surrounding the case, the 

district court conducted an individual voir dire, questioning 

the 71 prospective jurors directly and allowing the 

attorneys to ask follow-up questions. After dismissals for 

cause and hardship, the court seated 12 individuals from 

the final pre-qualified pool at random. At this point, both 

the defense and prosecution initiated their exercise of 

peremptory challenges. The government utilized three of its 

first four challenges to strike African-Americans, Ms. 

Hargis, Ms. Gorrell, and Mr. Robinson, and used one 

challenge to strike a Caucasian.6 It also exercised two 

peremptory challenges to strike Caucasian potential 

alternates. 

After the fifth round of peremptories (during which the 

government struck Mr. Robinson), Milan raised a Batson 

objection at a bench conference. Under Batson and its 

progeny, courts should evaluate a claim of an equal 

protection violation7 in jury selection using the following 

three-step process: (1) has the objector established a prima 

facie case by demonstrating a pattern of peremptory 

challenges of jurors of a particular race?; (2) if yes, did the 

party defending the challenges rebut the prima facie case 

by tendering a race-neutral explanation for the strikes?; (3) 

_________________________________________________________________ 

6. Under Fed. R. Crim. P. 24, the government has six peremptories and 

the defense ten. Both sides had two peremptories to challenge potential 

alternates. 

7. In Batson, which involved a state prosecution, the Supreme Court 

construed the Fourteenth Amendment’s Equal Protection Clause, which 

does not itself govern federal prosecutions. Nonetheless, the Batson 

analysis governs this case because the Fifth Amendment which does 

apply to the federal government generally requires the same equal 

protection analysis as in Fourteenth Amendment cases. See, e.g., United 

States v. Leslie, 813 F.2d 658, 659 (5th Cir. 1987) (en banc). 

 11 

 

if so, has the objector carried his burden of proving 

purposeful discrimination, for instance by showing that the 

proffered explanation is pretextual. See Hernandez v. New 

York, 500 U.S. 352, 358-359, 111 S.Ct. 1859, 1866 (1991) 

(citing Batson). 

Nevertheless, even before the district court evaluated 

whether Milan had presented a prima facie case, the 

government, as is common in the context of a Batson 

objection, immediately responded by stating a race-neutral 
explanation for each of its contested challenges. The 

government noted that Ms. Hargis had lived her adult life 

primarily in Essex County in northern New Jersey and had 

moved to southern New Jersey, where Camden is located, 

only three years earlier. Consequently, it stated a concern 

that she would not "blend" with the remaining jurors who 

were far more familiar with the local geography and had a 

higher level of interest in and familiarity with the 

community issues relevant to Milan’s trial. The prosecutor 

explained that Ms. Gorrell had indicated holding religious 

beliefs that interfered with her ability to pass judgment on 

other people. Finally, the prosecution emphasized that Mr. 

Robinson had substantial difficulty answering a number of 

the questions and acknowledged being unsure of what 

"impartial" meant. The prosecution elaborated that it was 

not confident of his ability to follow the nuances and 

complexities of a case which included 19 counts, some 

involving fairly intricate financial transactions, over 70 

witnesses, and hundreds of exhibits. 

The court rejected Milan’s Batson objections, informing 

the parties that it would make further rulings after the 

completion of jury selection. Thereafter, when revisiting the 

issue, the court made the following findings. First, agreeing 

that the government’s explanations were indeed facially 

neutral with respect to race, the court noted that the 

prosecutors had made no statements during voir dire which 

would indicate any latent bias against African-Americans. 

Second, the court noted that the government had chosen 

not to strike three other African-Americans who were 

seated in the final jury. Finally, the court made a credibility 

determination with respect to the prosecutors, holding that 

their reasons were genuine and made in "good faith" rather 

 12 

 

than being pretextual to camouflage a race-conscious 

motive percolating beneath. 

Milan now focuses his argument on the finding with 

respect to Ms. Hargis. The court, in evaluating the 

government’s stated motivation for striking Ms. Hargis -- 

her inability to "blend" with the other jurors because of her 

lack of familiarity with south Jersey -- to some extent 

agreed with the defense that the reasoning seemed 

somewhat attenuated considering that nothing else in her 

background suggested an inability to function adequately 

as a juror. See App. at 694. Nevertheless, the court 

determined that the prosecution’s reason was sincere and 

therefore survived Batson scrutiny. 

This finding was not clearly erroneous. To begin with, the 

facts underlying the government’s concern were accurate: 

leading up to the trial, Ms. Hargis indeed had lived in south 

Jersey for a shorter period than any of the 12 initially 

seated jurors. Moreover, it was not patently unsound or 

unreasonable for the government to prefer a juror with 

greater community ties and regional familiarity. 8 We 

recognize that the prosecution did not strike two other 
jurors with relatively transient ties to the south Jersey 

community: Ms. Bond who had resided in the area for only 

four years and before that had lived on the west coast and 

Ms. Cain who had resided in the area for only six years. Yet 

absent further evidence probative of prejudicial motive, this 

minor discrepancy,9 particularly in light of the finite 

_________________________________________________________________ 

8. We note that neither we nor the district court must endorse or reject 

the logic of the government’s nonracial motive so long as it is deemed 

genuine and credible. See Hernandez, 505 U.S. at 365, 111 S.Ct. at 

1869 ("In the typical peremptory challenge inquiry, the decisive question 

will be whether counsel’s race-neutral explanation for a peremptory 

challenge should be believed."). 

9. The fact remains that Ms. Hargis had the briefest recent residence of 

the three. Our analysis might be different if the reverse were true. See, 

e.g., Jones v. Ryan, 987 F.2d 960, 973 (3d Cir. 1993) (rejecting the 

prosecutor’s proffered race-neutral explanation for striking black jurors 

where the prosecutor did not apply the same rationale to white jurors in 

the identical or more extreme position). It also bears mentioning that 

Milan struck Ms. Bond and Ms. Cain, albeit in rounds after the 

government struck Ms. Hargis. 

 13 

 

number of peremptories available, does not undermine the 

integrity of the district court’s factual finding. 

Nothing else in the record, including the nature of the 

crimes, the race of the defendant or any witnesses, and the 

government’s strikes of Ms. Gorrell and Mr. Robinson 

(unassailed on appeal), suggests that the government took 

race into account in exercising its strikes. To the contrary, 

though it did not exhaust its allocated peremptories, the 

government did not strike three of six African-American 

jurors.10 In fact, the percentage of African-Americans seated 

on the jury appears to have exceeded the percentage of 

African-Americans among total venirepersons. Moreover, we 

find nothing suspect in the government’s use of the term 

"blending," a word that, in some circumstances, conceivably 

could be a cue to the presence of a sublimated 

discriminatory motive.11 Ultimately, the district court found 

the government’s explanation credible, and nothing before 

us suggests that we should upset that finding. In short, the 

district court’s factual finding regarding Ms. Hargis was not 

clearly erroneous. 

In his second Batson argument, Milan claims that the 

district court disregarded the correct analytical framework 

for judging his Batson objections by failing to scrutinize 

_________________________________________________________________ 

10. We recognize that the fact that a prosecutor did not exhaust the 

government’s peremptory challenges to exclude all black venirepersons 

does not mean that the prosecutor did not exercise any peremptory 

challenges in a discriminatory manner. See United States v. Clemons, 

843 F.2d 741, 747 (3d Cir. 1988) ("[W]e doubt the significance of 

including a single black on a panel if, at the same time, the government 
used most of its peremptory challenges . . . to strike blacks with 

backgrounds similar to the white jurors ultimately selected."). 

11. We realize that a prosecutor might couch a preference for a more 

homogeneous jury by accentuating an innocuous characteristic (e.g., 

geography, age, socio-economic status, marital status) which, in the 

interest of so-called "jury blending," not coincidentally correlates to 

certain demographic realities and may serve to cleave one race from 

another. See, e.g., Batson, 476 U.S. at 106, 106 S.Ct. at 1728 (Marshall, 

J., concurring) ("A prosecutor’s own conscious or unconscious racism 

may lead him easily to the conclusion that a prospective black juror is 

‘sullen,’ or ‘distant,’ a characterization that would not have come to his 

mind if a white juror had acted identically."). 

 14 

 

appropriately the race-neutral explanations the prosecution 

proffered for its exercise of peremptory challenges. This 

argument is distinct from his factual contention with 

respect to the government’s challenge to Ms. Hargis. 

Typically, we exercise plenary review of a district court’s 

application of legal precepts. See Shade v. Great Lakes 

Dredge & Dock Co., 154 F.3d 143, 152 (3d Cir. 1998). The 

government suggests, however, that our review here is 

governed by the more stringent plain error standard 

because Milan failed to object to the district court’s 

methodology in the district court. See Fed. R. Crim. P. 52(b) 

("[p]lain errors or defects affecting substantial rights may be 

noticed although they were not brought to the attention of 

the court"). Milan counters with the assertion that he did 

preserve the claim for appellate review by pressing his 

generic discrimination argument, which presumptively put 

the court on notice that a failure to apply the correct legal 

standards to the facts would be objectionable. 

Nevertheless, we need not determine the standard of 

review definitively because even under the more expansive 

de novo standard Milan’s claim is without merit. The record 

explicates that the district court properly applied the threeprong analysis that Batson and its progeny delineated. In 

the first instance, Milan raised an objection when three of 

the first four prospective jurors the government struck were 

African-American. Then the government, before the court 

determined whether the prima facie threshold had been 

crossed, quickly articulated race-neutral explanations for 

all three challenged venirepersons. The district court, as 

required by the strictures of Batson, contemplated the 

proffered explanations and the evidence before it and 

concluded ultimately that the defense had not carried its 

burden of showing purposeful discrimination on the part of 

the government. For example, in reviewing the challenge to 

Ms. Gorrell, the court, in line with Batson step three, noted 

that it did not find "the exercise of that challenge to have 

been racially motivated." App. at 693. 

Perhaps the court could have articulated more clearly its 

basis for finding that the government’s race-neutral 

explanations were legitimate and "expressed in good faith." 

See App. at 670. Notwithstanding, the court, specifically 
 15 

 

citing to and quoting Batson as well as our related case 

law, United States v. Casper, 956 F.2d 416 (3d Cir. 1992),12 

as the proper legal standard under which to analyze the 

claim, fulfilled its required constitutional task by evaluating 

the government’s reasons against the backdrop of the 

record to see whether there had been purposeful 

discrimination. Finding no basis to cast doubt on the 

government’s race-neutral explanations, the court overruled 

Milan’s objection. As no special scrutiny was required,13 the 

district court did not commit a legal error. 

B. Reasonable Doubt Instruction 

Milan argues next that we should reverse his conviction 

on all counts because the district court diluted the 

constitutionally required standard of proof in its jury 

instruction on reasonable doubt. As Milan did not raise this 

objection at trial, we review this contention for plain error. 

See United States v. Wolfe, 245 F.3d 257, 260-61 (3d Cir. 

2001). 

At the outset of the trial, the court gave a brief definition 

of proof beyond a reasonable doubt as evidence of"such a 

convincing character that a reasonable person without 

hesitation would rely and act upon it in the most important 

of his or her own affairs." App. at 738. The court also 

explained the presumption of innocence afforded to Milan 

and the burden of persuasion demanded of the government, 

with the latter satisfied only on the basis of "evidence that 

is produced during the course of this trial." App. at 737. 

At the close of the trial, the court instructed the jury in 

its final charge as follows, in relevant part: 

 A reasonable doubt is a doubt which a reasonable 

 person has after carefully weighing all of the evidence 

_________________________________________________________________ 

12. See App. at 689-95. 

13. Milan points to a statement in Uwaezhoke , 995 F.2d at 393, that a 

trial court should exercise special scrutiny in the third Batson step when 

the government’s explanation would have a disparate impact on a 

particular racial group. The Uwaezhoke court, however, immediately 

qualified this position, explaining that the existence of a disparate 

impact does not alter the legal standard the trial judge should apply. See 

id. at 393 n.4. 

 16 

 

 based upon reason and common sense. It is the kind 

 of doubt that would make a reasonable person hesitate 

 to act . . . Now, a reasonable doubt is not a possible 

 doubt or a fanciful doubt. A reasonable doubt is not a 

 doubt arbitrarily or capriciously asserted by a juror 
 because of his or her reluctance to perform a difficult 

 task. It is not a doubt arising from the natural 

 sympathy which one may have for another . . . it is not 

 necessary for the government to prove the guilt of the 

 defendant beyond all possible doubt or to a 

 mathematical certainty. If that were the rule, few 

 persons would ever be convicted, however guilty they 

 might be. The reason is that in this world of ours, it is 

 practically impossible to be absolutely and completely 

 convinced of any disputed fact which by its nature 

 is not susceptible to mathematical certainty. 

 Consequently, in a criminal case, it is sufficient if the 

 proofs show that the defendant is guilty beyond a 

 reasonable doubt, and not beyond all possible doubt. 

 And I will sum up the concept for you in this way. 

 Reasonable doubt may be said to exist in any case 

 when, after careful and impartial consideration of the 

 evidence, the jurors do not feel convinced to a moral 

 certainty that a defendant is guilty. If, however, after a 

 fair, impartial and careful consideration of all the 

 evidence you are convinced of the guilt of the 

 defendant beyond a reasonable doubt, then it is your 

 duty to return a verdict of guilty with respect to that 

 charge. On the other hand, after such a fair, impartial 

 and careful consideration of all the evidence, if you 

 have a reasonable doubt as to the defendant’s guilt, 

 then it is your duty to find the defendant not guilty of 

 the particular offense charged. Keep in mind that in 

 every criminal case, and certainly in this one as well, 

 the burden is upon the government to prove the 

 defendant’s guilt beyond a reasonable doubt. The 

 burden of proving their guilt beyond a reasonable 

 doubt remains with the government throughout the 

 case, and it never shifts to the defendant. And this 

 burden of proof beyond a reasonable doubt extends 

 and relates to each essential element of the crimes 

 charged. 

 17 

 

App. at 3610-12 (emphasis added). 

Milan posits error in the court’s equating of proof beyond 

a reasonable doubt with "moral certainty" without defining 

or contextualizing the phrase. See United States v. Jacobs, 

44 F.3d 1219, 1226 (3d Cir. 1995) ("moral certainty" should 

not be used in charge). When viewed as a whole, 14 however, 

the instructions did not create a reasonable likelihood that 

the jury would have believed that it could convict Milan 

based on a standard of proof lower than that required by 

the Due Process Clause of the Constitution. See Victor v. 

Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 1243 (1994). 

Rather, we are satisfied that the court’s comprehensive 

charge mitigated any taint created by its single, isolated 

utterance of the phrase "moral certainty," as it clearly and 

repeatedly admonished the jury to consider only the 

evidence (rather than its subjective moral sensibilities) and 

allocated the burden of proof squarely within the province 

of the prosecution (the burden of proof "remains with the 
government throughout the case" and "extends and relates 

to each essential element of the crimes charged"). Moreover, 

the charge explained the meaning of reasonable doubt at 

great length, appropriately, and without reference to the 

objectionable phrase. We see no reason to doubt that the 

jury, guided by these comprehensive instructions, 15 applied 

the law correctly in its deliberation. 

Milan correctly notes that we expressly have discouraged 

use of "moral certainty" language in a reasonable doubt 

instruction. See Jacobs, 44 F.3d at 1226. However, the 

mere presence of the phrase in a jury charge does not 

_________________________________________________________________ 

14. See United States v. Thayer, 201 F.3d 214, 221 (3d Cir. 1999) (in 

evaluating a challenge to jury instructions, "we consider the totality of 

the instructions and not a particular sentence or paragraph in isolation") 

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

15. We presume that the jury followed the district court’s instructions. 

See Francis v. Franklin, 471 U.S. 307, 324 n.9, 105 S.Ct. 1965, 1976 n.9 

(1985) (dubbing it a "crucial assumption" underlying our trial system 

that jurors carefully follow instructions) (citation omitted). Moreover, the 

record is consistent with this presumption, considering that the jury, 

after eight days of deliberation, returned a mixed verdict of convictions, 

acquittals, and hung counts. See United States v. Gilsenan, 949 F.2d 90, 

96 (3d Cir. 1991). 

 18 

 

render the instructions constitutionally defective. See 

Victor, 511 U.S. at 16, 114 S.Ct. at 1248 (engaging in a 

case-specific analysis to conclude it not reasonably likely 

that a jury understood the words "moral certainty" as 

"suggesting a standard of proof lower than due process 

requires or as allowing conviction on factors other than the 

government’s proof "); see also Johnson v. Alabama, 256 

F.3d 1156, 1192 (11th Cir. 2001) ("use of the term ‘moral 

certainty’ in a reasonable doubt instruction is not fatal"). As 

we are satisfied that the district court’s charge adequately 

ensured that the "moral certainty" terminology reasonably 

would not be understood to lower the government’s burden, 

Milan fails to demonstrate plain error, i.e. an unfair 

prejudicial impact on the outcome of the case.16 

C. Brady Claim 

Milan next argues that the government’s failure to reveal 

exculpatory evidence requires that we reverse his conviction 

on counts 3 and 9. Our review of the denial of a motion for 

new trial on the basis of a Brady argument is de novo with 

respect to the district court’s conclusions of law and is 

based on the "clearly erroneous" standard with respect to 

its findings of fact. See United States v. Perdomo, 929 F.2d 

967, 969 (3d Cir. 1991). 

Counts 3 and 9 centered around Milan’s receipt of cash 

and other benefits from Natale through Daidone from 

March 1996 to June 1998. Natale, who signed a 
cooperating plea agreement in September 1999 with respect 

to two criminal informations, was a principal government 

witness at Milan’s trial. Daidone, however, did not testify. 

Natale, who also was slated to testify for the government in 

a separate organized crime prosecution brought in the 

Eastern District of Pennsylvania against Joseph Merlino, 

was incarcerated pending Milan’s trial at F.C.I. Allenwood 

where the Bureau of Prisons monitored and recorded a 

number of his phone conversations. 

The defense in the Merlino case learned of the existence 

of the tapes and successfully moved for their preservation 

and disclosure. R.J. Saturno, an FBI agent who worked on 

_________________________________________________________________ 

16. See United States v. Thayer, 201 F.3d 214, 222-23 (3d Cir. 1999). 

 19 

 

both the Milan and Merlino cases, subsequently transported 

the tapes to the office of the United States Attorney in 

Philadelphia. 

Before jury selection began in Milan’s trial, an Assistant 

United States Attorney from the District of New Jersey 

learned of the tapes. Accordingly, the prosecutor contacted 

the United States Attorney’s Office in Philadelphia regarding 

the tapes and transcripts but was advised that that office, 

on the basis of its review of them, determined that they 

contained only irrelevant discussions of family matters and 

the like. See App. at 3772. 

On May 23, 2001, some four months after the completion 

of the Milan trial, the government provided Milan’s new 

attorney with copies of the tapes, as well as a written 

summary of the conversations and transcripts of three 

particular conversations. Milan moved for a new trial on the 

basis of the tapes on June 6, 2001, but the court denied 

the motion during Milan’s sentencing hearing. 

On July 9, 2001, the district court issued a 

memorandum opinion explaining its denial as follows. 

Revising statements made during the hearing, the court 

concluded that the government "could have easily reviewed 

the tapes and had an obligation to do so" because the 

information contained in them was "easily accessible." App. 

at 4182, 4185. Nevertheless, the court ruled that Milan’s 

defense was not prejudiced by his trial attorney’s inability 

to use the tapes in cross-examining Natale. We agree. 

Under Giglio v. United States, 405 U.S. 150, 154-55, 92 

S.Ct. 763, 766 (1972), the government must disclose 

materials that go to the question of guilt or innocence as 

well as materials that might affect the jury’s judgment of 

the credibility of a crucial prosecution witness. See also 

United States v. Bagley, 473 U.S. 667, 676-77, 105 S.Ct. 

3375, 3380-81 (1985). However, to warrant a reversal, the 

withheld evidence must be material, that is, of sufficient 

significance that its suppression deprived the defendant of 
a fair trial. See United States v. Agurs, 427 U.S. 97, 108, 96 

S.Ct. 2392, 2399 (1976); see also Pennsylvania v. Ritchie, 

480 U.S. 39, 57, 107 S.Ct. 989, 1001 (1987) (evidence is 

material only if there is a "reasonable probability that, had 

 20 

 

the evidence been disclosed to the defense, the result of the 

proceeding would have been different") (citations omitted). 

Portions of the tapes reveal that Natale expected an early 

release from prison as a result of his cooperation with the 

government. For example, in one conversation with Daniel 

D’Ambrosia, a former crime associate, Natale surmises a 

likely release in approximately one to two years. See App. at 

3840. In another conversation, Natale informs one of his 

daughters that he expects to be home "not too far in the 

future." App. at 4067. In addition, the tapes demonstrate 

that Natale suggested that his involvement in the case 

might bring about a lucrative book or movie deal. See App. 

at 3922. Milan maintains that the tapes were relevant to 

impeach Natale’s credibility by demonstrating his motive to 

falsify his connection to Milan to secure a reduced sentence 

or a financial windfall. 

After a review of the extensive record in this case, we 

conclude that the government’s failure to divulge the tapes 

did not impair the integrity of the trial as a whole or put the 

case in such a different light so as to undermine confidence 

in the verdict. At the outset, it bears mentioning that Milan 

overstates the potential benefit of the tapes to his defense 

inasmuch as they included, inter alia, Natale’s inculpatory 

statement that he was "buying Milan," App. at 4131, and a 

statement by Natale that "I don’t have to make a story up" 

because he had been "promised nothing" from the 

government. App. at 4074-75. Furthermore, to the extent 

that they demonstrate that Natale once anticipated 

government leniency in exchange for his cooperation, the 

tapes are undercut by Natale’s subsequent recognition at 

his plea colloquy, some five months after the last tape was 

recorded, that the district court had discretion to reject any 

government U.S.S.G. S 5K1.1 motion for a reduced sentence 

or grant the motion and nevertheless limit any reduction. 

See id. at 775-76. Likewise, as the district court correctly 

noted, the suggestion that Natale had a financial incentive 

to lie and capitalize on his crimes is far-fetched considering 

that there was no credible evidence of a potential book or 

movie deal. In fact, Natale testified during the Merlino case 

that he had inflated his prospects when speaking to his 

wife and daughter in order to assuage their concerns over 

 21 

 

mounting financial woes. See Appellee’s Supp. App. at 797- 

99. Furthermore, there was an obvious non-financial 

reason why Natale would tell his wife and daughter that he 

expected to be home soon: to comfort them in a time when 

they missed his presence in their lives. 
Most importantly, the additional evidence would have 

been merely cumulative. See Hollman v. Wilson , 158 F.3d 

177, 182 (3d Cir. 1998); United States v. Hill , 976 F.2d 132, 

136 (3d Cir. 1992). The government disclosed to Milan a 

wealth of impeachment materials concerning Natale, 

including his entire criminal history, transcripts of his 

testimony before a United States Senate Subcommittee 

investigating organized crime, a civil RICO complaint, 

scores of FBI 302s, hundreds of intercepted recorded 

conversations between Natale and other crime associates, 

wiretap affidavits, his cooperation agreement, the two 

informations to which he had pleaded guilty, the transcript 

of his guilty plea hearing, and an audiotape of a parole 

hearing. Amply equipped with materials evincing that 

Natale cooperated with the government in return for the 

possibility of a reduced sentence, Milan’s trial attorney 

exploited this fact on cross-examination: 

 Attorney: Now, getting back to the plea agreement. 

 Your understanding is as a result of your 

 cooperation, the government is prepared to 

 file what is known as a substantial 

 assistance motion, known as a 5K1.1, 

 correct? 

 Natale: Correct. 

 Attorney: And that particular motion would allow 

 you to escape the mandatory life [sentence] 

 that you’re looking at, correct? 

 Natale: True. 

App. at 1512. In addition, the district court specifically 

instructed the jury that in evaluating the credibility of 

witnesses it could consider any plea arrangements in which 

the government agreed to urge leniency at sentencing in 

exchange for witness cooperation during investigation and 

trial. See id. at 3607. 

 22 

 

In that sense, this case is distinguishable from those 

relied upon by Milan where the withheld evidence was 

material because it deprived the defense of any reasonable 

opportunity to pursue a particular avenue of impeachment. 

See, e.g., Crivens v. Roth, 172 F.3d 991, 999 (7th Cir. 1999) 

(new trial warranted where the state failed to turn over the 

criminal history records of its witness for impeachment 

purposes); United States v. Service Deli Inc. , 151 F.3d 938, 

942-44 (9th Cir. 1998) (new trial required because failure to 

disclose information regarding the central government 

witness, which included statements attributing inconsistent 

testimony to "a stroke which affected his memory," 

completely foreclosed certain impeachment strategies). 

Moreover, even without access to the largely redundant 

tapes, Milan’s attorney pursued a number of other means 
of attacking Natale’s credibility, including highlighting a 

prior criminal record that included complicity in more than 

a dozen murders. Milan’s attorney also inquired into 

Natale’s relationship with a previous Camden city council 

president, with whom Natale had met face-to-face on 

numerous occasions to bribe. This line of questioning cast 

doubt on Natale’s claim that he had to pay Milan off using 

Daidone as a middle man in order to avoid public attention. 

In short, Milan’s attorney was not precluded from 

pursuing any theory of impeachment with respect to Natale. 

See United States v. Johnson, 199 F.3d 123, 128 (3d Cir. 

1999) (rejecting Brady challenge where the defense 

otherwise was allowed to cross-examine prosecution 

witnesses on "many areas affecting credibility"). As there 

was considerable other evidentiary support to sustain the 

conviction on counts 3 and 9,17 Milan is not entitled to 

_________________________________________________________________ 

17. To reiterate, count 3, a wire fraud charge, alleged that Milan carried 

out a scheme to defraud the public of his honest services by accepting 

a paid golf vacation to Palm Beach, Florida. The government bolstered 

Natale’s testimony with travel agency business records showing that 

Daidone paid for the trip in cash, testimony from investigators who 

witnessed Milan and Daidone board the plane to Florida, testimony from 

a hotel employee confirming their arrival, and other evidence to 

demonstrate that Daidone was doing and seeking business with the City 

of Camden. Count 9 charged a conspiracy to accept illegal payments 

 23 

 

relief. See, e.g., United States v. Price, 13 F.3d 711, 722 (3d 

Cir. 1994).18 

D. Improper Vouching 

Milan challenges his conviction on counts 3, 9, 15, 16, 

and 17 on the ground that the government vouched for the 

integrity and strength of its case on these counts. 19 

Specifically, Milan complains that there was improper 

vouching when the prosecutor introduced testimony about 

the district court’s role in approving wiretaps, elicited 

testimony about the truthfulness of cooperating witnesses, 

and introduced testimony concerning the prosecution of 

government witnesses Jose Rivera and Saul Febo before 

they decided to cooperate. Because, as he acknowledges, 

Milan raised no objection at trial to the alleged vouching, 

we review the contention only for plain error. See United 

States v. Saada, 212 F.3d 210, 224 (3d Cir. 2000). 

Vouching constitutes an "assurance by the prosecuting 

attorney of the credibility of a Government witness through 

personal knowledge or by other information outside of the 

testimony before the jury." United States v. Walker, 155 

F.3d 180, 184 (3d Cir. 1998). Vouching runs the danger of 

influencing the jury to disregard its fact-finding mandate in 

favor of privileging and perhaps deferring to the view of the 

evidence as endorsed by a sovereign representative. See 

_________________________________________________________________ 
from Natale in violation of the Travel Act. To demonstrate that Daidone 

functioned as an intermediary between Natale and Milan, the 

government introduced a tape recording of a March 1996 conversation 

between Daidone and Natale discussing Daidone’s first meeting with 

Milan, as well as testimony from government agents who witnessed 

Daidone exiting Natale’s apartment to meet with Milan, parked nearby. 

There was also testimony from the owner of an Italian restaurant to the 

effect that Natale paid him approximately $1,000 to cover the cost of a 

dinner at the restaurant the previous evening celebrating Milan’s election 

as mayor. 

18. We do not reach the issue of whether the prosecution had actual or 

constructive knowledge of the tapes and transcripts as their suppression 

did not materially impair the fairness of the trial. 

19. These counts involved testimony of witnesses on whose behalf the 

government allegedly vouched. 

 24 

 

United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 

1048 (1985) (vouching for witnesses or expressing personal 

opinions concerning guilt of the accused carries"the 

imprimatur of the Government and may induce the jury to 

trust the Government’s judgment rather than its own view 

of the evidence"). Vouching also runs the risk of 

engendering a jury belief in the existence of outside 

information tending to support the position of the 

government. See United States v. Toner, 173 F.2d 140, 142 

(3d Cir. 1949) (acknowledging a defendant’s "right to have 

his guilt or innocence determined by the evidence presented 

against him"). 

For example, in United States v. Dispoz-O-Plastics, Inc., 

172 F.3d 275, 284 (3d Cir. 1999), we found a prosecutor’s 

remark about a policy of the Department of Justice not to 

give "two-for-one deals" improper because it was meant to 

convince the jury that the prosecutor somehow knew that 

the witnesses were telling the truth, i.e., that the 

department would not give a deal in return for the two 

guilty pleas unless it was convinced that there were two 

separate offenses. See also United States v. DiLoreto, 888 

F.2d 996, 998 (3d Cir. 1989) (reversing convictions where 

the prosecutor attempted to bolster the credibility of its 

cooperating witnesses by stating during closing rebuttal: 

"We don’t take liars. We don’t put liars on the stand. We 

don’t do that").20 

While Milan attacks specific and isolated strategic 

choices the prosecution pursued at trial, he fails to 

demonstrate that a representative of the government gave 

inappropriate personal assurances concerning the reliability 

of a witness based on facts not before the jury. For 

instance, Milan suggests that the prosecutor’s pursuit of 

testimony concerning judicial approval for wiretaps 21 

_________________________________________________________________ 

20. United States v. Zehrbach, 47 F.3d 1252, 1267 (3d Cir. 1995) (en 
banc), overruled DiLoreto because DiLoreto applied a per se rule in its 

analysis. However, Zehrbach did not overrule the result reached in 

DiLoreto. See id. at 1255 n.1. 

21. The government asked Agent Saturno whether"the wiretaps on 

Natale’s residential telephone [were] authorized by a District Court Judge 

right here in Camden," to which he replied, "yes." App. at 1163. While we 

 25 

 

created the "appearance that the very court where the trial 

was heard had participated in and approved the 

government investigation." Br. at 90. But this evidence, 

though of tangential relevance considering that Milan’s 

attorney never sought to challenge the government’s use of 

wiretap techniques, was nevertheless admissible 22 and, 

more significantly, did not involve superfluous, personal 

opinions of the prosecutor vouching for a witness. See 

Saada, 212 F.3d at 225 (two criteria required to find 

vouching are: (1) the prosecutor must assure the jury that 

the testimony of a government witness is credible, and (2) 

this assurance must be based on either the prosecutor’s 

personal knowledge or other information not contained in 

the record). 

Likewise, with respect to the cooperating witnesses 

Natale, Rivera, and Febo, the prosecutor inquired into their 

previous convictions and their cooperation agreements, 

specifically those aspects requiring truthfulness in 

exchange for a leniency recommendation, but never made 

any statement that invited a plausible jury inference of 

extra-record proof of reliability in the government’s 

exclusive possession. See United States v. Ramos , 27 F.3d 

65, 67 n.4 (3d Cir. 1994) (no improper vouching where 

government merely made reference to the "truthfulness 

provision" of a plea agreement). As Milan fails to show that 

the prosecutors referred to facts not adduced at trial or 

offered personal opinions to bolster the integrity and 

believability of their witnesses, he does not carry his 

burden of showing prejudice. See United States v. Turcks, 

41 F.3d 893, 897 (3d Cir. 1994) (an error is "plain" if it 

"seriously affect[s] the fairness, integrity or public 

reputation of the judicial proceedings") (citations omitted). 

_________________________________________________________________ 

see no basis to find that there was vouching by reason of this question, 

particularly in the absence of an objection at trial, we must say that we 

can see no legitimate reason for the reference to"right here in Camden." 

We also point out that if the prosecution stated to the jury that the judge 

thought that the defendant was guilty the comment might be so 

prejudicial as to require a new trial. 

22. The defense opened the door by intimating during opening 

statements that the government was willing to engage in improprieties -- 

had made "a pact with devils," App. at 823, in order to convict Milan. 

 26 

 
E. 3-Level Upward Departure 

Lastly, Milan contends that the district court erred when 

it applied a 3-level upward departure to his combined 

offense level rather than to the public corruption counts 

only, which had the effect of increasing his sentence by 16 

months.23 On this point, a majority of the panel affirms the 

district court; however, Judge Greenberg, the author of the 

rest of this opinion, would reverse. The following portion of 

this opinion, therefore, represents the views of Chief Judge 

Becker as joined in by Judge Barzilay, with Judge 

Greenberg offering the reasons for his disagreement in a 

separate dissenting opinion, infra. 

At sentencing, the court adopted, without objection, the 

grouping calculations of the Presentence Investigation 

Report (PSR) which, applying the methodology set forth in 

U.S.S.G. S 3D1.2,24 trisected Milan’s convictions into 

distinct groups according to the nature of the offenses: 

Group One, involving Milan’s unlawful financial 

transactions concerning the loan from Rivera (counts 15, 

16, and 17); Group Two, involving Milan’s crimes as a 

public official (counts 1, 3, 4, 7, 8, 9, 12, 13, and 14); and 

Group Three, involving the staged burglary of Atlas 

Contracting Company and subsequent insurance fraud 

(counts 18 and 19). 

The government moved for an upward departure on the 

grounds that Milan was involved in systematic or pervasive 

corruption of a public office which caused a loss of 

_________________________________________________________________ 

23. Our review of the district court’s construction of the Sentencing 

Guidelines is plenary. See United States v. Swan , 275 F.3d 272, 275 (3d 

Cir. 2002). 

24. Section 3D1.1(a) of the guidelines establishes a three-step procedure 

for determining the proper offense level in a case that involves multiple 

counts of conviction. First, counts that are "closely related" must be 

grouped in accordance with the provisions of section 3D1.2. Each group 

then is assigned an offense level based on the count with the highest 

offense level within that group. See U.S.S.G. S 3D1.3. Finally, if there is 

more than one group, section 3D1.4 provides that the combined offense 

level is derived by determining "units" for each group and adding offense 

level increases for each group to the offense level for the group with the 

highest specified offense level. 

 27 

 

confidence in government. Specifically, U.S.S.G.S 2C1.7, 

the guideline used to calculate the adjusted offense level for 

the Group Two crimes, which is entitled "Fraud Involving 

Deprivation of the Intangible Right to the Honest Services of 

Public Officials; Conspiracy to Defraud by Interference with 

Governmental Functions," contains within its commentary 

Application Note 5, which states: 

 Where the court finds that the defendant’s conduct was 

 part of a systematic or pervasive corruption of a 
 governmental function, process, or office that may 

 cause loss of public confidence in government, an 

 upward departure may be warranted. See Chapter Five, 

 Part K (Departures). 

The court granted the government’s motion, adding a 3- 

level upward departure to Milan’s combined offense level for 

a total base of 27 as follows: 

 Section 3D1.4 

 Units 

 Adjusted Offense Level for Group One: 23 

 Adjusted Offense Level for Group Two: 18 

 Adjusted Offense Level for Group 

 Three: 11 

 Total Units 1-1/2 

 Greater Adjusted Offense Level 23 

 Increase in Offense Level 1 

 Section 2C1.7 Departure Increase 3 

 Total Offense Level 27 

See PSR at 21-27. With criminal history category I, the 

sentencing range was 70 to 87 months, and the court 

imposed the maximum term available within the range. 

Milan maintains that the district court should have 

applied the departure only to the Group Two adjusted 

offense level, the group encompassing Milan’s acts of public 

corruption to which the departure was applicable, before 

applying the multiple-grouping adjustments found in 

U.S.S.G. S 3D1.4. Applying the 3-level public corruption 

departure only to calculate the adjusted offense level of the 

public corruption charges would have yielded the following 

results: 

 28 

 

 Section 3D1.4 

 Units 

 Adjusted Offense Level for Group One: 23 

 Adjusted Offense Level for Group Two 

 (with three-level section 2C1.7 

 departure applied): 21 

 Adjusted Offense Level for Group 

 Three: 11 

 Total Units 2 

 Greater Adjusted Offense Level 23 

 Increase in Offense Level 2 

 Total Offense Level 25 

With a criminal history category I, the sentencing range 

under Milan’s proposed methodology would have been 57 to 

71 months. 

Under U.S.S.G. S 1B1.1 the steps for calculating a 

sentence are as follows: (a) determine the applicable 

guideline section for each offense from Chapter Two; (b) 

determine the base offense level and apply any appropriate 

"specific offense characteristics, cross references, and 
special instructions" contained in the particular guideline 

in Chapter Two; (c) apply the adjustments as appropriate 

related to victim, role, and obstruction of justice from Parts 

A, B, and C of Chapter Three; (d) repeat steps (a) through 

(c) for each count and adjust the offense level accordingly 

if there are multiple counts of conviction; (e) apply the 

adjustment as appropriate for the defendant’s acceptance of 

responsibility from Part E of Chapter Three; (f) determine 

the defendant’s criminal history category as specified in 

Part A of Chapter Four; (g) determine the guideline range in 

Part A of Chapter Five that corresponds to the offense level 

and criminal history category previously determined; (h) 

determine from Parts B through G of Chapter Five the 

sentencing requirements and options related to probation, 

imprisonment, supervision conditions, fines, and 

restitution; and, (i) "[r]efer to Parts H and K of Chapter Five, 

Specific Offender Characteristics and Departures, and to 

any other policy statements or commentary in the 

guidelines that might warrant consideration in imposing 

sentence." U.S.S.G. S 1B1.1(a)-(i). We have held that these 

steps are to be applied sequentially by the sentencing 

 29 

 

court. See United States v. Johnson, 155 F.3d 682, 684 (3d 

Cir. 1998) ("The court reads these instructions as providing 

a sequence of steps for the court to follow in the order in 

which they appear."); United States v. McDowell, 888 F.2d 

285, 293 (3d Cir. 1989) (construing S1B1.1 as reflecting 

"[t]he intent of the Sentencing Commission . . . that the 

Guidelines be applied like a formula; a court . . . should go 

down each guideline in order, making the necessary 

calculations"). As we will explain infra, we think that 

structure applicable here. 

Milan contends that the district court erred in applying 

the S 2C1.7 Application Note 5 upward departure at step (i) 

(after the step (d) grouping) rather than at step (b) (before 

grouping). Milan asserts that Note 5 is a departure specific 

to S 2C1.7 and not the type of more general,"unguided" 

Chapter 5 departure to which step (i) refers. This 

conclusion is supported, according to Milan, by the 

language of Note 5, which is narrowly written and directed 

toward the offense level determination for a S 2C1.7 offense. 

For the same reason, Milan submits that applying the Note 

5 departure to the adjusted base offense level before 

grouping is more consistent with the "punishment fits the 

crime" logic of the Guidelines in that the upward departure 

for governmental corruption ought to be specifically tied to 

that portion of his sentence that relates to his crimes as a 

public official. 

The government counters by arguing that Milan’s 

proposed methodology is inconsistent with the Guidelines’ 

text. Specifically, the government contends that the Note 5 

departure is neither a "specific offense characteristic," a 

"cross reference," nor a "special instruction," and therefore 

does not fall within the ambit of S 1B1.1 step (b). Rather, 

the government contends, Note 5 is simply a reference to 
the type of Chapter 5 departure that the sentencing court 

may properly consider at step (i), only after the multiplegroups adjustments have been performed. Furthermore, the 

government argues that the district court’s methodology is 

more consistent with general Guidelines principles in that 

it allows the judge to assess the factors listed in Note 5 only 

after the judge has considered all of the information 

relevant to determining whether a departure is appropriate, 

 30 

 

such as the defendant’s criminal history and whether the 

defendant has accepted responsibility for his acts. 

We hold that the government’s position is correct, and 

that the district court did not err in applying Note 5 to 

Milan’s sentence after grouping. We reach this conclusion 

primarily because we find the text of the Sentencing 

Guidelines clear on this point. In particular, we think it 

plain that the departure warranted by Application Note 5 

does not amount to a "specific offense characteristic," 

"cross reference," or "special instruction," the only three 

types of sentencing adjustments to which step (b) explicitly 

refers. 

Milan has conceded that Note 5 is not a "specific offense 

characteristic," see Milan’s Reply Br. at 18, and he has not 

raised any argument that Note 5 is a "cross reference," nor 

could he reasonably do so in light of the fact thatS 2C1.7 

does not include Note 5 within its four provisions-- 

U.S.S.G. S 2C1.7(c)(1)-(4) -- expressly designated as "cross 

references," see United States v. Gay, 240 F.3d 1222, 1232 

(10th Cir. 2001) (concluding that the Guidelines’ career 

offender provision, U.S.S.G. S 4B1.1, is not a"cross 

reference" in part because it is not labeled as such), nor 

does Note 5 instruct the sentencing court to apply any 

other guideline, which is a requirement under the 

Guidelines’ definition of a "cross reference." See U.S.S.G. 

S 1B1.5 (defining a "cross reference" as"an instruction to 

apply another offense guideline"). 

We also think it clear that Note 5 does not qualify, as 

Milan argues, as a "special instruction," a phrase which is 

used as a term of art in the Guidelines. The Guidelines take 

care to label "special instructions" expressly as such in 

many subsections of Chapter Two. See, e.g., U.S.S.G. 

SS 2A3.1(d), 2B1.1(d), 2B4.1(c). Note 5, however, is not 

expressly labeled a "special instruction." We apply the rules 

of statutory construction when interpreting the Guidelines, 

see United States v. Robinson, 94 F.3d 1325, 1328 (9th Cir. 

1996), and under the well-established canon of statutory 

construction of expressio unius est exclusio alterius, the 

Guidelines’ failure to expressly designate Note 5 as a 

"special instruction" when this label is conspicuously 

affixed to many other provisions within the same chapter is 

 31 

 
a clear sign that the authors of the Guidelines did not 

intend for Note 5 to operate as a "special instruction." 

Indeed, all of the provisions prominently labeled as"special 

instructions" appear within the text of each Guideline, 

unlike Note 5, which appears within the commentary to 

S 2C1.7. Even if Milan is correct that it is more "intuitive" 

to apply the Note 5 departure, which is for systematic or 

pervasive governmental corruption causing loss of public 

confidence in government, only to Milan’s offenses that 

relate to his crimes as a public official, where the text of the 

Guidelines appears clear, as it does here, whatever 

"intuition" we may have must yield to the language of the 

Guidelines. 

Milan argues that even if Note 5 is not expressly 

designated as a "special instruction," it is the functional 

equivalent thereof, and therefore ought to be treated as 

such for the purposes of step (b) of S 1B1.1. We disagree. As 

mentioned above, the text of S 1B1.1(b) refers only to 

"specific offense characteristics, cross references, and 

special instructions," and does not include any sort of 

"catch-all" provision for subsections or commentary that, 

while different in form, are similar in function to these 

three very specifically defined Guideline terms. In contrast, 

subsection (i) of S 1B1.1, which is the step at which the 

district court applied Note 5, does contain a "catch-all" 

provision that refers to "any other policy statements or 

commentary in the guidelines that might warrant 

consideration in imposing sentence." Moreover, Milan’s 

contention that Note 5 is the functional equivalent of a 

"special instruction" is simply a restatement of his claim 

that Note 5 ought to be applied at step (b) rather than at 

step (i); in other words, Note 5 is only a functional 

equivalent of a "special instruction" if Milan is correct that 

Note 5 should be applied before the grouping adjustment. 

For the reasons stated above, we reject this assertion on 

the basis of the Guidelines’ clear text.25 

_________________________________________________________________ 

25. As support for his position, Milan cites to United States v. Nguyen, 

255 F.3d 1335 (11th Cir. 2001), in which the United States Court of 

Appeals for the Eleventh Circuit was called upon to determine when the 

sentencing court ought to have applied Application Note 1 of the 

 32 

 

Moreover, applying the Note 5 departure after grouping is 

logical. Sentencing within the range prescribed by the 

_________________________________________________________________ 

commentary to U.S.S.G. S 2A1.1, which provides that a departure may 

be warranted in a murder conviction where the defendant did not 

intentionally or knowingly cause death (such as in the case of so-called 

"felony-murder"): during step (b) of the S 1B1.1 sequence, or after the 

determination of the combined offense level, at step (i). Interestingly, 

because the departure at issue in Nguyen was a downward rather than 

an upward departure, the roles of the parties in Nguyen were reversed: 

the government argued for applying the departure only to the particular 

offense, and the defendant argued for applying the departure to the 
combined offense level. The Eleventh Circuit agreed with the government 

and concluded that it was proper for the sentencing court to apply the 

departure only to the murder offense at step (b) before determining the 

combined offense level. 

Nguyen does not dissuade us from concluding that Milan’s argument 

is incorrect. As the dissent points out, the court in Nguyen "implicitly" 

concluded that the S 2A1.1 Note 1 departure is comparable to "specific 

offense characteristics, cross references, and special instructions" for 

purposes of S 1B1.1(b). Dis. Op. at 45. The reasoning of the Nguyen 

court, however, was only implicit and never explicit, as the court made 

no effort to reconcile its conclusion with the plain language of step (b). 

Indeed, the Nguyen court addressed this issue in only one paragraph, 

see 255 F.3d at 1344-45, and offered only the summary conclusion that 

the sentencing court "did not err in first departing downward from the 

base offense level for murder and then applying the grouping rules . . . ." 

Id. at 1345. Furthermore, Nguyen is arguably distinguishable because it 

addressed an application note from an entirely different guideline section 

than that presented here. Although the application note considered in 

Nguyen, S 2A1.1 Application Note 1, is similar to the application note at 

issue here in that it is not expressly labeled as a"special instruction," it 

is different in that it makes no explicit citation to "Chapter Five, Section 

K (Departures)," as does S 2C1.7 Application Note 5. It may well be, 

therefore, that a better argument can be made thatS 2A1.1 Application 

Note 1 is a functional equivalent of a "special instruction" than can be 

put forth on behalf of S 2C1.7 Application Note 5. 

Nguyen illustrates how our holding today may not always be to the 

government’s advantage. Rather, as counsel for the government 

conceded at oral argument, in cases in which it is a downward departure 

rather than an upward departure that is at issue, it would be to the 

government’s advantage to have the departure deducted from the 

sentence before grouping rather than afterwards. See Trans. of Oral 

 33 

 

Guidelines is supposed to be the norm, and departures the 

exception, see U.S.S.G., Chapter One, Part A, Intro. 

Comment 4(b) (departures permitted only when the 

sentencing court finds "an aggravating or mitigating 

circumstance of a kind, or to a degree, not adequately 

taken into consideration by the Sentencing Commission in 

formulating the guidelines that should result in a sentence 

different from that described" (quoting 18 U.S.C.S 3553(b)). 

Therefore it is sensible to first calculate the correct 

Guidelines sentencing range before the court determines 

whether a sentence within that range provides an 

appropriate punishment for the defendant or whether a 

departure is necessary. In this sense, Note 5 simply serves 

to "flag" for the sentencing judge an aggravating 

circumstance likely to occur in a S 2C1.7 offense for later 

consideration at the more discretionary departure stage.26 

_________________________________________________________________ 

Argument at 44-45 ("This isn’t always going to hurt the defendant, it 

may be that if you get in a situation where there’s going to be a 

downward departure, the defendant is better off having the departure 

applied after the grouping . . . . [S]o, this isn’t a procedure that always 

helps the government . . . ."). The United States Attorney’s Office for the 
District of New Jersey, therefore, has apparently made the tactical 

decision that it would prefer that these departures be applied after 

grouping, a decision which appears to be in conflict with the strategy of 

its sister office, the United States Attorney’s Office for the Northern 

District of Georgia, in Nguyen. 

26. The dissent observes that the Note 5 departure for systematic or 

pervasive corruption of government that may cause loss of public 

confidence in government is distinct from the S 5K2.7 departure for 

"disruption of governmental function." See Dis. Op. at 43 n.7. We agree. 

However, we fail to see how this distinction sheds any light on the 

question of when in the U.S.S.G. S 1B1.1 sequence to apply the Note 5 

departure. The dissent’s reasoning seems to be that since we know that 

S 5K2.7 is a departure to be applied at step (i), the fact that Note 5 is 

different from S 5K2.7 in terms of the conduct to which it applies 

indicates that Note 5 does not apply at step (i). In our opinion, however, 

the dissent has taken one distinction between the two provisions -- the 

types of conduct to which they apply -- and erroneously inferred from 

this distinction another, unrelated distinction-- the point at which to 

apply each departure. We see no justification for this inference; the mere 

fact that Note 5 and S 5K2.7 apply to different types of conduct does not 

indicate to us that they should also apply at different stages of the 

S 1B1.1 sequence. 

 34 

 

Then, when the sentencing court considers Note 5 at step 

(i), it may determine the propriety of a departure in light of 

full information regarding other factors relevant to the 

defendant’s sentence, such as the defendant’s background, 

conduct, and character. See U.S.S.G. S 1B1.1(c)-(h).27 In 

contrast, under Milan’s scenario, the sentencing court 

would be forced to make a departure decision before it had 

made any of these findings, which would have the effect of 

placing, as the government colorfully observes,"the 

departure cart before the Guidelines Range horse." 

The dissent believes that even if we are correct that a 

Note 5 departure must be applied only during step (i), "it 

does not follow logically that the court may apply the 

departure only to the final offense level." Dis. Op. at 41. 

Rather, the dissent submits, because step (i) directs a 

sentencing court only to "refer to," rather than "apply" the 

Chapter Five departures, the sentencing court is free to 

" ‘refer’ to a provision of the guidelines at step (i) but 

nevertheless then ‘apply’ the departure at an earlier step of 

its calculations." Id. We find the dissent’s reading of a 

supposed distinction between "refer" and "apply" to be 

inconsistent with our case law interpreting S 1B1.1 as 

imposing a sequential order for the application of steps (a) 

through (i). See United States v. Johnson, 155 F.3d 682, 

684 (3d Cir. 1998) ("The court reads these instructions as 

providing a sequence of steps for the court to follow in the 

_________________________________________________________________ 

27. The language of U.S.S.G. S 5K2.0, entitled "Grounds for Departure 

(Policy Statement)," seems to contemplate a phenomenon akin to what 

has presented itself here. It notes: 
 [A] factor may be listed as a specific offense characteristic under one 

 guideline but not under all guidelines. Simply because it was not 

 listed does not mean that there may not be circumstances when 

 that factor would be relevant to sentencing. For example, the use of 

 a weapon has been listed as a specific offense characteristic under 

 many guidelines, but not under other guidelines. Therefore, if a 

 weapon is a relevant factor to sentencing under one of these other 

 guidelines, the court may depart for this reason. 

(Emphasis added.) This excerpt only confirms our conclusion that when 

a factor resembles a "special instruction," but is not specifically labeled 

as such, the Guidelines intend for it to be considered by the sentencing 

court at the departure stage, which is step (i) of the S 1B1.1 sequence. 

 35 

 

order in which they appear.") (second emphasis added); 

United States v. McDowell, 888 F.2d 285, 293 (3d Cir. 1989) 

(construing S1B1.1 as reflecting "[t]he intent of the 

Sentencing Commission . . . that the Guidelines be applied 

like a formula; a court should go down each guideline in 

order, making the necessary calculations") (emphasis 

added). Under the dissent’s proposed reading, step (i) 

departures could be applied retroactively at step (b), 

thereby creating an end-around to our requirement that the 

steps of S 1B1.1 be applied in strict sequential order. While 

we recognize that, as the dissent correctly observes, neither 

Johnson nor McDowell considered whether all of the steps 

of S 1B1.1 ought to be applied in sequential order, we see 

no logical reason why the rule endorsed in each decision 

should not extent to subsection (i). 

Moreover, we think that the dissent is incorrect in its 

view as to why the authors of the Guidelines use the term 

"refer to," rather than "apply," in step (i). The departures 

referenced in step (i) are discretionary in nature. See United 

States v. Kikumura, 918 F.2d 1084, 1110 (3d Cir. 1990) 

(noting that district courts have a "substantial amount of 

discretion" in deciding whether to depart). It is for this 

reason (and, as far as we can discern, this reason alone) 

that the Guidelines instruct the district court merely to 

"refer to" the departure provisions. "Refer" is defined by 

Webster’s as "to direct attention," Webster’s Third New Int’l 

Dict. 1907 (Phillip B. Gove ed., 1966), and this is precisely 

what step (i) intends to do -- direct the attention of the 

sentencing judge to the appropriate factors to be considered 

in deciding whether to depart. "Refer to," therefore, is a 

more appropriate term for the inherently discretionary 

exercise of departing than "apply," which is defined by 

Webster’s as "to put into effect," id. at 105, and connotes a 

rote, mechanical, non-discretionary execution of duties. We 

believe that it is for this reason, and not for the reasons 

offered by the dissent, that step (i) uses "refer to" instead of 

"apply." 

For the foregoing reasons, we hold that the district court 

was correct to apply the Note 5 departure at step (i), after 

 36 
 

the grouping of the counts, and we will therefore affirm the 

sentence.28 

 III. CONCLUSION 

 In accordance with our reasoning set forth above, we will 

affirm the judgment of conviction and sentence entered 

June 15, 2001. 

_________________________________________________________________ 

28. Finally, we note that, as our dissenting colleague Judge Greenberg 

pointed out during a colloquy with government counsel at oral argument, 

had the sentencing court applied the Note 5 departure at step (b) rather 

than step (i), the court still could have arrived at the same final sentence 

had it been willing to depart seven, rather than three, levels for Milan’s 

pervasive or systematic corruption. The following represents the 

hypothetical calculation: 

 Section 3D1.4 Units 

 Adjusted Offense Level for Group One: 23 

 Adjusted Offense Level for Group Two 

 (with seven-level section 2C1.7 departure applied): 25 

 Adjusted Offense Level for Group Three: 11 

 Total Units 27 

 Greater Adjusted Offense Level 25 

 Increase in Offense Level 2 

 Total Offense Level 27 

The practical import of our holding, therefore, may be limited in that 

it is possible for the sentencing court to reach the same final sentence 

under either Milan’s or the government’s proposed methodologies. 

However, there is, without doubt, importance in our deciding by which 

route it is that the district court arrives at its final sentence. As defense 

counsel explained at oral argument, while it would have been possible 

for the sentencing court to impose the same sentence under Milan’s 

method, in doing so the court would have had to"justify" the propriety 

of upwardly departing seven levels rather than merely three, which may 

have been difficult for the sentencing court to do. See Trans. of Oral 

Argument at 61-62. Moreover, as we explained above, by departing at 

step (i) rather than at step (b), the sentencing court has the benefit of 

having already considered all of the other factors listed in subsections (c) 

through (h) that are relevant to the defendant’s sentence. 

 37 

 

GREENBERG, Circuit Judge, dissenting: 

The majority rejects Milan’s argument that the district 

court erred when it applied a 3-level upward departure to 

his combined offense level rather than to the public 

corruption counts only. I, however, dissent on this point. 

As the majority indicates, at sentencing the court 

trisected Milan’s convictions into distinct groups: Group 

One, involving Milan’s unlawful financial transactions 

concerning the loan from Rivera (counts 15, 16, and 17); 
Group Two, involving Milan’s crimes as a public official 

(counts 1, 3, 4, 7, 8, 9, 12, 13, and 14); and Group Three, 

involving the staged burglary of Atlas Contracting Company 

and subsequent insurance fraud (counts 18 and 19). 

The government moved for an upward departure on the 

grounds that Milan was involved in a systematic or 

pervasive corruption of a public office which caused a loss 

of confidence in government on the basis of Application 

Note 5 of the commentary to U.S.S.G. S 2C1.7, 1 the 

guideline used to calculate the adjusted offense level for the 

Group Two crimes, which states: 

 Where the court finds that the defendant’s conduct was 

 part of a systematic or pervasive corruption of a 

 governmental function, process, or office that may 

 cause a loss of public confidence in government, an 

 upward departure may be warranted. See Chapter Five, 

 Part K (Departures). 

(emphasis in original). The court granted the motion, 

adding a 3-level upward departure to Milan’s combined 

offense level for a total base of 27 as follows: 

 Section 3D1.4 

 Units 

 Adjusted Offense Level for Group One: 23 

 Adjusted Offense Level for Group Two: 18 

 Adjusted Offense Level for Group 

 Three: 11 

 Total Units 1-1/2 

_________________________________________________________________ 

1. Entitled "Fraud Involving Deprivation of the Intangible Right to the 

Honest Services of Public Officials; Conspiracy to Defraud by Interference 

with Governmental Functions." 

 38 

 

 Greater Adjusted Offense Level 23 

 Increase in Offense Level 1 

 Section 2C1.7 Departure Increase 3 

 Total Offense Level 27 

See PSR at 21-27. The total offense level when combined 

with a criminal history category I, yielded a sentencing 

range of 70 to 87 months. The court then imposed an 87- 

month sentence. 

As the majority indicates, Milan maintains that the 

district court should have applied the departure only to the 

Group Two adjusted offense level, the group encompassing 

Milan’s acts of public corruption to which the departure 

was applicable, before applying the multiple-grouping 

adjustments found in U.S.S.G. S 3D1.4. Applying the 3-level 

public corruption departure only to calculate the adjusted 

offense level of the public corruption charges would have 

yielded the following results: 
 Section 3D1.4 

 Units 

 Adjusted Offense Level for Group One: 23 

 Adjusted Offense Level for Group Two 

 (with three-level section 2C1.7 

 departure applied): 21 

 Adjusted Offense Level for Group 

 Three: 11 

 Total Units 2 

 Greater Adjusted Offense Level 23 

 Increase in Offense Level 2 

 Total Offense Level 25 

The total offense level of 25 combined with a criminal 

history category I would have yielded a sentencing range of 

57 to 71 months. 

I believe that Milan’s approach is correct and thus I 

dissent on this point. As the majority sets forth, under 

U.S.S.G. S 1B1.1, the sequence for calculating a sentence is 

as follows: (a) determine the applicable guideline section for 

each offense from Chapter Two; (b) determine the base 

offense level and apply any appropriate "specific offense 

characteristics, cross references, and special instructions" 

contained in the particular guideline in Chapter Two; (c) 

 39 

 

apply the adjustments as appropriate related to victim, role, 

and obstruction of justice from Parts A, B, and C of 

Chapter Three; (d) repeat steps (a) through (c) for each 

count and adjust the offense level accordingly if there are 

multiple counts of conviction; (e) apply the adjustment as 

appropriate for the defendant’s acceptance of responsibility 

from Part E of Chapter Three; (f) determine the defendant’s 

criminal history category as specified in Part A of Chapter 

Four; (g) determine the guideline range in Part A of Chapter 

Five that corresponds to the offense level and criminal 

history category previously determined; (h) determine from 

Parts B through G of Chapter Five the sentencing 

requirements and options related to probation, 

imprisonment, supervision conditions, fines, and 

restitution; and, (i) "[r]efer to Parts H and K of Chapter Five, 

Specific Offender Characteristics and Departures, and to 

any other policy statements or commentary in the 

guidelines that might warrant consideration in imposing 

sentence." U.S.S.G. S 1B1.1(a)-(i). 

The government interprets section 1B1 as requiring a 

district court to apply any departures that do not qualify 

explicitly as "specific offense characteristics, cross 

references, and special instructions" (which are considered 

during step (b) in calculating the offense level) during the 

last step in the process and thus only after grouping and 

only to the combined, total offense level. Thus, goes the 

argument, inasmuch as the section 2C1.7, Application Note 

5 departure for systematic or pervasive corruption is part of 

the "commentary in the guidelines" but not a"specific 

offense characteristic," "cross reference," or "special 
instruction," the court may apply it only after completing 

the grouping calculations during step (i) listed above. The 

majority accepts the government’s approach. 

I believe, however, that the government’s position is off 

the mark. To begin with, the text of the guidelines is more 

ambiguous than the government posits. Accepting arguendo 

the government’s initial premise that a section 2C1.7, 

Application Note 5 departure must be applied like a 

Chapter 5, Part K departure only during step (i) because it 

does not appear under any of the section 2C1.7 headings of 

"specific offense characteristic," "cross reference," or 

 40 

 

"special instruction,"2 it does not follow logically that the 

court may apply the departure only to the final offense 

level. U.S.S.G. S 1B1.1(i) directs a court simply to "refer"3 to 

the Chapter 5, Part K departures and any other policy 

statements or guideline commentaries before settling on a 

final sentence. However, the guidelines do not dictate 

rigidly how or at what point in the process the departure is 

to be applied. In marked contrast, the section 1B1.1 

Application Instructions very clearly instruct a court to 

"[a]pply" any victim, role, and obstruction of justice 

adjustments during step (c) after calculating the base 

offense level4 and to "[a]pply" any acceptance of 

responsibility adjustment during step (e) after applying the 

grouping rules to determine the total offense level. 5 See 

United States v. McDowell, 888 F.2d 285, 293 (3rd Cir. 

1989) ("With respect to the adjustment for acceptance of 

responsibility, the Guidelines specify that this adjustment 

should be made only after the counts are combined.") 

(emphasis added). Plainly the court can "refer" to a 

provision of the guidelines at step (i) but nevertheless then 

"apply" the departure at an earlier step of its calculations.6 

_________________________________________________________________ 

2. The government also emphasizes the fact that Application Note 5 

expressly references "Chapter Five, Part K (Departures)." But, this could 

mean one of two things: either that an Application Note 5 departure is 

a type of Chapter 5, Part K departure or that it is analogous to one for 

purposes of the general policy considerations applicable to all 

departures. See United States v. Reyes, 239 F.3d 722, 746 (5th Cir. 

2001); see also The Bluebook: A Uniform System of Citation (Columbia 

Law Review Ass’n et al. eds., 17th ed., The Harvard Law Review Ass’n 

2000) at 22-23 (the signal "see" demonstrates that the cited authority 

"clearly supports the proposition," drawing an"inferential step between 

the authority cited and the proposition it supports." However, "see" does 

not reflect that "the proposition is . . . directly stated by the cited 

authority" rather than merely following from it). 

3. Emphasis added. 

4. U.S.S.G. S 1B1.1(c) (emphasis added). 

5. U.S.S.G. S 1B1.1(e) (emphasis added). 

6. To the extent that I accept for purposes of argument that a sentencing 
court must consider a section 2C1.7, Application Note 5 departure 

during step (i), I am consistent with our precedents holding that steps (a) 

through (i) are applied in a strict sequential order. See, e.g., United 

 41 

 

Furthermore, though it does not appear under the 

heading "specific offense characteristic,""cross reference," 

or "special instruction," a departure for systematic or 

pervasive corruption of a government function is identified 

within the public corruption guideline itself, section 2C1.7, 

not within Chapter 5, Part K. Listed as an "Application 

Note" in the commentary, it expresses the position of the 

Sentencing Commission that a court, in aggravating 

circumstances such as those present here, may consider 

adjusting the sanctions (i.e. increasing the offense level) 

specifically for corruption-related offense conduct that falls 

within the scope of Section 2C. That is to say, the 

placement of the public corruption departure within the 

_________________________________________________________________ 

States v. Johnson, 155 F.3d 682, 684 (3d Cir. 1998); McDowell, 888 F.2d 

at 292-93. Thus, the court makes the necessary calculations under each 

step in order (choosing the guideline, determining the base offense level, 

applying adjustments, etc.) until arriving at the final step, step (i). At this 

point, the court considers (i.e. "refer[s] to") the Specific Offender 

Characteristics and Departures of Chapter Five as well as any other 

policy statements or commentary in the guidelines before imposing 

sentence. Once the court makes that consultation, it literally fulfills step 

(i) in keeping with our sequential-order rule as well as fundamental 

canons of statutory interpretation. See, e.g., United States v. Wong, 3 

F.3d 667, 670 (3d Cir. 1993) ("As with statutory language, the plain and 

unambiguous language of the Sentencing Guidelines affords the best 

recourse for their proper interpretation."). Under this approach, any 

course of action taken by the court after that consultation is not cabined 

by the sequential methodology of section 1B1.1. Certainly there can be 

no doubt that in concluding infra that a section 2C1.7, Application Note 

5 departure is to be applied during step (b) as the functional equivalent 

of a "specific offense characteristic," "cross reference," and "special 

instruction," I am not in conflict with our precedents. Moreover, one 

plausibly can argue that our precedents do not stand for the proposition 

that the entirety of the Sentencing Guideline Application Instructions are 

to be applied in the order in which they appear. Johnson actually stated 

only that subsections (a)-(g) provide a rigid sequence of steps. See 155 

F.3d at 683-84. Likewise, McDowell held only that an adjustment for 

acceptance of responsibility under step (e) must be applied after the 

combined offense level has been calculated in order pursuant to steps 

(a)-(d). See 888 F.2d at 292-93. The cases simply do not address the 

question of whether the serial method of applying section 1B1.1 extends 

to step (i). 

 42 

 

Chapter 2 public corruption guideline itself rather than 

within the generic rubric of Chapter 5 strongly suggests 

that the Commission intended for the departure to be 

considered at the moment the court consults the section 

2C1.7 guideline to calculate the offense level for pertinent 
crimes.7 A contrary reading, on the other hand, confounds 

a uniform, systematic reading of the guidelines by virtue of 

a consequently scattershot application, with some portions 

of a given guideline applied in computing the offense level 

and others applied at some later stage in the process. 

The point I make is consistent with the Sentencing 

Commission’s contemplation of two distinct types of 

departures: those in which "the guidelines provide specific 

guidance for departure by analogy or by other numerical or 

non-numerical suggestions" and those catch-all departures 

that "remain unguided," resting either upon"grounds 

referred to in Chapter Five, Part K (Departures) or on 

grounds not mentioned in the guidelines." U.S.S.G., ch. 1, 

pt. A, 4(b). So-called "guided departures"-- where a 

guideline or related commentary suggests that a departure 

may be warranted under certain specific circumstances 

considered by the Sentencing Commission8 -- "are more 

akin to adjustments, such as those in Chapters Two and 

Three, which judges use to calculate the applicable 

Guidelines range, rather than a departure from the 

Guidelines range." Michael S. Gelacak et al., Departures 

Under the Federal Sentencing Guidelines: An Empirical and 

Jurisprudential Analysis, 81 Minn. L. Rev. 299, 315 (1996); 

_________________________________________________________________ 

7. In fact, Chapter 5 already provides for an analogous departure in 

circumstances where a "defendant’s conduct results in a significant 

disruption of a governmental function." U.S.S.G.S 5K2.7. At first glance, 

the sweeping language of section 5K2.7 would seem to encompass the 

departure formulated in Application Note 5 of section 2C1.7. Yet, as even 

the government conceded at oral argument and as the majority 

acknowledges, the two departures are indeed distinct, a circumstance 

which I find indicative of the drafters’ understanding that the more 

particularized section 2C1.7, Application Note 5 departure is to be 

applied only in the context of the precise guideline in which the 

Sentencing Commission deliberately situated it. 

8. See, e.g., U.S.S.G. S 2B1.1, Application Note 15; U.S.S.G. S 2D1.1, 

Application Note 14; U.S.S.G. S 2G1.2, Application Note 12. 

 43 

 

see also Bruce M. Selya & Matthew R. Kipp, An 

Examination of Emerging Departure Jurisprudence Under the 

Federal Sentencing Guidelines, 67 Notre Dame L. Rev. 1, 11 

(1991) (A "guided" departure involves "instances in which a 

guideline or related commentary suggests that under 

particular circumstances a departure is warranted."). 

Moreover, the application of a section 2C1.7, Application 

Note 5 departure after completion of the grouping analysis 

lends itself to untenable outcomes. In this case, for 

instance, it resulted in the district court’s enhancing 

Milan’s punishment for crimes temporally and 

substantively unrelated to his abuse of public office. It 

created a sentencing anomaly whereby, simply by opting to 

try distinct charges together,9 the government was able to 

bootstrap a 3-level public corruption departure to the 
unconnected money laundering charge which drove the 

guideline range (an adjusted offense level of 23 as opposed 

to 18 for the corruption counts). Put differently, the court 

in essence enhanced the money laundering convictions 

(Group One), whose guideline range was calculated 

separately under Chapter 2, Section S, on the basis of an 

offense-specific departure contained in an unrelated section 

of the guidelines concerning public corruption. This 

methodology contravened an express design of the grouping 

rules to "limit the significance of the formal charging 

decision." U.S.S.G. ch. 3, pt. D, Introductory Commentary. 

See also U.S.S.G. ch. 1, pt. A, 4(a) ("the Commission has 

written its rules for the treatment of multicount convictions 

with an eye toward eliminating unfair treatment that might 

flow from count manipulation"); U.S.S.G. ch. 1, pt. A, 3 (the 

Sentencing Guidelines promote horizontal uniformity in 

sentencing by requiring that similarly situated defendants 

are sentenced similarly). 

In the closest case for comparison of which I am aware, 

United States v. Nguyen, 255 F.3d 1335, 1345 (11th Cir. 

2001), the Court of Appeals for the Eleventh Circuit 

confronted a similar issue with respect to applying a 

downward departure under U.S.S.G. S 2A1.1, Application 

_________________________________________________________________ 

9. Of course, the consolidated trial in itself resulted in an increased 

combined offense level under the grouping rules. 

 44 

 

Note 1, which provides that a departure may be warranted 

in a murder conviction where the defendant did not 

intentionally or knowingly cause death. In Nguyen, one of 

the defendants was convicted of multiple counts in a RICO 

conspiracy, including felony murder. At sentencing the 

district court calculated the offense level under section 

2A1.1, departed downward 6 levels pursuant to Application 

Note 1, and then applied the grouping rules to determine 

the combined offense level. See Nguyen, 255 F.3d at 1344- 

45. 

On appeal, the defendant advanced the government’s 

position in this case, namely that the district court first 

should have grouped the offenses and then applied the 

downward departure to the combined offense level. The 

court of appeals disagreed, holding that the section 2A1.1, 

Application Note 1 departure was to be considered in the 

aforementioned step (b) base offense level determination. 

See id. at 1345. In other words, the court implicitly 

concluded that a departure identified in the commentary to 

an offense guideline is comparable to "specific offense 

characteristics, cross references, and special instructions" 

for purposes of U.S.S.G. S 1B1.1(b), and thus properly is 

considered in determining the base offense level before 

grouping. While the majority indicates that Nguyen does 

not dissuade it from concluding that Milan’s argument is 

incorrect and notes that the Nguyen court addressed the 

issue in only a single paragraph, still the Nguyen ruling is 
clear and I see no escape from a conclusion that by 

reaching our result we are creating a conflict between two 

circuits. Of course, as the majority points out, the conflict 

reflects an apparent rift between the United States 

Attorneys’ offices in New Jersey and the Northern District of 

Georgia.10 

Overall, I am satisfied that a section 2C1.7, Application 

Note 5 departure for systematic or pervasive corruption of 

a government function, like "specific offense characteristics, 

cross references, and special instructions," may be applied 

_________________________________________________________________ 

10. I do not doubt, however, that sophisticated defense attorneys reading 

the opinions here and in Nguyen will conclude that the actual rule is 

"heads, the government wins, tails the defendant loses." 

 45 

 

to adjust only the base offense level of the specific, 

corruption-related offenses to which it applies. Thus, I 

believe that the district court erred when it applied the 3- 

level departure to a final combined offense level after 

applying the grouping methodology to multiple and 

disparate counts. Consequently, I dissent on this point. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 46