1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-19-1999

USA v. Bradley

Precedential or Non-Precedential:

Docket 97-5462

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Recommended Citation

"USA v. Bradley" (1999). 1999 Decisions. Paper 103.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/103
Filed April 19, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 97-5462 and 97-5464 

UNITED STATES OF AMERICA 

v. 

WILLIAM F. BRADLEY, 

a/k/a FRANKLIN BRADLEY 

William F. Bradley, 

 Appellant in No. 97-5462 

UNITED STATES OF AMERICA 

v. 

JACKIE R. MATTISON, 

 Appellant in No. 97-5464 

On Appeal from the United States District Court 

for the District of New Jersey 

District Judge: Honorable William G. Bassler 

(D.C. Crim. Nos. 96-00052-2 and 96-00052-1) 

Argued February 17, 1999 

BEFORE: GREENBERG, ROTH, and LOURIE,* 

Circuit Judges 

(Filed: April 19, 1999) 

_________________________________________________________________ 

*Honorable Alan D. Lourie, Circuit Judge of the United States Court of 

Appeals for the Federal Circuit, sitting by designation. 
 Elizabeth Ferguson (argued) 

 Assistant United States Attorney 

 George S. Leone 

 Assistant United States Attorney 

 Faith S. Hochberg 

 United States Attorney 

 970 Broad Street 

 Room 700 

 Newark, NJ 07102 

 Attorneys for Appellee 

 Raymond A. Brown 

 Brown & Brown 

 One Gateway Center 

 Suite 510 

 Newark, NJ 07102 

 Attorneys for Appellant in 

 No. 97-5462 

 Thomas R. Ashley 

 Ashley & Charles 

 50 Park Place, Suite 1400 

 Newark, NJ 07102 

 Alan L. Zegas (argued) 

 Gina L. Mendola 

 Sharon B. Kean 

 552 Main Street 

 Chatham, NJ 07928 

 Attorneys for Appellant in 

 No. 97-5464 

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

The case comes on before this court on the appeals of 

William F. Bradley and Jackie R. Mattison following their 

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convictions for certain offenses in the district court at a 

two-month trial. We have consolidated their appeals and 

dispose of both in this opinion. 

Mattison was Chief of Staff for Sharpe James, the Mayor 

of the City of Newark, from approximately 1987 through 

early 1996, and was also a New Jersey State Assemblyman 

during that period. As Chief of Staff, Mattison acted as the 

Mayor's liaison between the City's Business Administrator 

and its department heads, ran the Mayor's office and 

agencies, served as liaison with the city council, boards and 

commissions, acted as the Mayor's representative at

business meetings, and served as the Mayor's lobbyist in 

Trenton. The grand jury named Mattison's long-term 

girlfriend, Janice L. Williams, who was in the hair salon 

business, as an unindicted co-conspirator. Mattison and 

Williams together owned a house and shared a rented safedeposit box. Moreover, Mattison opened bank accounts in 

Williams' name in trust for their daughter. During the 

course of the investigation in this case the FBI seized 

$157,000 in cash from lockboxes in Williams' house and 

evidence of that seizure was admitted at the trial.

Bradley was an insurance broker/financial consultant in 

the late 1980s, running a business called Bradley Financial 

Services from an office in Milburn, New Jersey. Bradley had 

known Williams, through Mattison, for about 15 years at 

the time of trial. The evidence at the trial demonstrated that 

Mattison helped Bradley in his role as a consultant for two 

companies, Great West Assurance Company and Corroon & 

Black, to obtain and maintain contracts with the City and 

the Newark Board of Education. The City chose Great West 

as a provider of deferred compensation plans for City 

employees, and the Board of Education chose Corroon to 

provide insurance with Bradley as its minority 

subcontractor. 

There was evidence that Mattison provided Bradley with 

official favors with respect to those contracts in return for 

a series of corrupt payments from Bradley. In particular, 

Bradley gave two checks payable to Mattison to him, one 

for $4,457.50 in September 1990 and one for $1,640 in 

January 1991. Bradley labeled the first check "fees" and 

the second "consulting." Mattison deposited the first into 

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his personal bank account and cashed the second. Bradley 

made three checks payable to Williams for Mattison's direct 

and indirect benefit. The checks were for $3,600, dated 

October 8, 1991, $3,600, dated November 13, 1992, and 

$3,575, dated October 13, 1994. Williams deposited the 

first check into a new account she opened with the deposit 

but she added no other deposits to the account. She

withdrew the entire balance in a check payable to cash on 

February 5, 1992. She deposited the second check into her 

personal checking account, and paid certain of Mattison's 

bills with it. She deposited the third check into her 

checking account and, over the next nine days, made cash 

withdrawals from the account for $2,000, $1,000 and $800. 

Thus, Bradley made total payments to Mattison of 

$16,872.50. Mattison did not reveal the receipt of these 

payments on financial forms he was required to file by 

reason of his public positions. Williams testified that the 

payments Bradley made to her were loans, and Bradley 

claimed that the first check he wrote to Mattison was a 

repayment of a loan. 

The government demonstrated that Mattison referred 

Bradley to Great West when it was seeking the contract to 

provide the City's deferred compensation plan. Bradley, in 

fact, became Great West's consultant. Mattison also

furnished Bradley with information useful to Great West in 

seeking the contract and Bradley indicated to Great West 

that Mattison would aid it in winning the contract, which 

he did. Significantly, the assistance Mattison gave to 

Bradley included ensuring that a potential competitor did 

not offer a competing deferred compensation plan to the 

City. 

The evidence showed that the Newark Board of Education 

was selecting an insurance plan in 1989-90 to cover its 

buildings and other property. Under applicable rules, 

Corroon was required to have a minority contractor 

participating with it and Mattison vouched for Bradley for 

that role. Corroon paid Bradley an unusually high 

commission, but Bradley did little work to earn it. A search 

of Bradley's office revealed correspondence addressed to 

Mattison, some confidential, pertaining to the Board of 

Education contract. After Corroon secured the contract in 

 4 
1990, Bradley was unable to obtain minority certification 

and lacked malpractice insurance necessary for him to 

comply with the contract. Nevertheless, through Mattison's 

intervention, Corroon decided to pay Bradley his 

commission in September 1991, despite initially stopping 

payment on a check to him. 

Bradley and Williams testified that the various money 

transfers related to loans, but the government argued that 

their explanations were not convincing. For example, 

Williams testified that her loans from Bradley had no terms, 

and that there were no written records kept about them. 

Bradley testified that his first check to Mattison was 

repayment for a loan Mattison had made to him to 

purchase a co-op, but evidence showed that he borrowed 

money for that purpose from a woman he was dating. While 

Bradley stated that he wrote "consulting" on that check so 

he could deduct it from taxes, he had not filed tax returns 

since 1989, leading to the tax evasion conviction in the 

case. Moreover, Bradley was in financial difficulties during 

this period and thus it is not likely that he would have been 

in a position to lend Williams money. Furthermore, while 

Williams stated the loans were for her hair salon business, 

the business was not in serious trouble, and she had funds 

available to her from a City program and in her own

accounts. Also, in 1993 when Bradley sought a minority 

business certification he did not indicate that he had loans 

receivable as assets. 

A grand jury returned a 26-count superseding indictment 

against Mattison and Bradley. It charged both in counts 

one through 19 with: conspiracy to accept corrupt 

payments; accepting money to influence and reward; a 

scheme to extort money under official right, violating the 

Hobbs Act; use of a facility in interstate commerce to accept 

a benefit not allowed by law to influence the performance of 

Mattison's duties contrary to New Jersey law; and use of 

mail and wire fraud to deprive the citizens of Newark and 

New Jersey of their right to honest services of a public 

official. It charged Bradley separately in seven counts for 

three offenses: making a false declaration before the grand 

jury; false use of a social security number; and tax evasion 

from 1989-1993. 

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The court dismissed three jurors during and after the 

summations at the trial. The court dismissed the first, 

Moldow, to attend a family funeral. The court dismissed the 

second, Jefferson, one day later, for sleeping. The court 

dismissed the third because the juror had vacation plans. 

During the early stages of the trial, jurors mentioned that 

Jefferson had an odor problem and the court moved her 

seat so she was further away from the other jurors. Later 

the Assistant United States Attorney told the court he 

thought that Jefferson was eating paper. The jurors, 

however, did not make any subsequent complaints 

regarding odor problems or any other issue concerning 

Jefferson. When near the end of the trial Moldow brought 

her request to leave the jury to the court, she asked if the 

court would dismiss the other alternates. At that time the 

court asked her if there was something she wanted to tell 

it. Moldow then stated that she thought Jefferson, who was 

an alternate, was not a good listener and had made up her 

mind with respect to the outcome of the case. The court 

also asked if the odor issue continued. The court told the 

parties about the situation, and the court placed Moldow 

under oath for questioning. 

Moldow stated that near the start of trial, she had

overheard Jefferson during lunch mutter a comment about 

making up her own mind and not listening to the court. 

Moldow said the remark shocked her and that she asked 

Jefferson what she had said, but that Jefferson denied 

saying anything. 

The court then told the parties that it had noticed

Jefferson sleeping. It then swore in one of its law clerks, 

who testified that during the government's closing, she had 

noticed Jefferson sleeping. The defendants had the 

opportunity to cross-examine the clerk but did not do so. 

The court expressed its desire to question Jefferson, but the 

defendants opposed that procedure. The court then decided 

to delay questioning her in recognition of her status as an 

alternate. 

Ultimately the court dismissed the juror who had 

vacation plans. The court then stated that it had observed 

that Jefferson was not paying attention during the 

 6 
defendants' summation. The defendants at that time 

changed their position, and urged the court to examine 

Jefferson. The court offered to voir dire all jurors about the 

comment Moldow overheard, but it did not do so. After 

further discussion, the court dismissed Jefferson without 

questioning her. We understand that if the court had not 

excused Jefferson she would have deliberated in this case. 

Eventually the jury convicted both defendants on all 

counts. 

The court calculated Mattison's guidelines range at 33-41 

months, and it sentenced him to 41 months imprisonment 

on each count to run concurrently, three years' supervised 

release on each count, also to run concurrently, 400 hours 

of community service, a fine of $25,000, and special 

assessment of $950. 

Bradley's guidelines range was 46-57 months, and the 

court sentenced him to concurrent 46-month custodial 

terms on each count, to three-year terms of concurrent 

supervised release, a fine of $7,500, and a special

assessment of $1,300. 

II. DISCUSSION 

A. Whether the district court abused its discretion when it 

 allowed the government to adduce evidence that 

 $157,000 was found in Williams' attic to impeach her 

 testimony. 

On this appeal Mattison has filed briefs in which Bradley 

has joined. The defendants argue that evidence of the 

$157,000 recovered from Williams was "highly 

inflammatory" and "unfairly prejudicial" and that the jury 

could not "compartmentalize" the evidence even with the 

court's limiting instructions. Brief at 22-23. They argue 

that while no effort was made to link the cash to Mattison, 

the evidence "powerfully suggested" that Mattison had 

something to do with it, as it was found in Williams' home. 

Id. at 23. 

The government called Williams as a witness following a 

grant of immunity to her. Testimony demonstrated that the 

FBI had found the $157,000 in cash in lockboxes in the 

 7 
attic of her house during a November 9, 1995 search made 

in connection with the investigation against Mattison and 

Bradley. Williams claimed that she had found the money in 

her father's house a year after his death, on approximately 

October 24, 1995, and that she had not put the money in 

a bank because she was waiting to discuss the matter with 

a sister. The government stated that the evidence was 

admissible to impeach Williams' testimony that she had 

lent money she obtained from Bradley's first loan to her, in 

1991, for $3,600, to her father. In this regard, the 

government suggested that if her father had had so much 

money, he would not have borrowed from Williams. The 

government also contended that evidence of the money 

impeached her testimony that Bradley's three payments to 

her were loans as Williams did not repay Bradley at the 

time she found that money. Moreover, it argued that the 

evidence demonstrated that Williams' grand jury testimony 

that she withdrew $3,500 in cash in February 1992 for her 

father was false, and had to be changed at trial where 

Williams said she gave some money to her father and used 

some money for personal bills. 

The government had a legitimate reason to offer the

evidence to attack Williams' credibility. The court gave 

limiting instructions to the effect that the evidence with 

respect to the $157,000 was admitted only to impeach 

Williams, and that the prosecution did not suggest that 

there was a connection between the cash, the defendants, 

and any crime. 

The court's decision to admit the evidence was proper. 

See Carter v. Hewitt, 617 F.2d 973, 972 (3d Cir. 1980) 

("prejudice" entails a determination on "an improper basis 

of decision"). In making a Fed. R. Evid. 403 determination, 

the district court is required to balance the probative value 

of evidence against its prejudicial effect. The district court 

"must appraise the genuine need for the challenged 

evidence and balance that necessity against the risk of 

prejudice to the defendant." Government of the Virgin 

Islands v. Archibald, 987 F.2d 180, 186 (3d Cir. 1993) 

(internal quotation marks and citations omitted). Here 

evidence regarding the $157,000 had a legitimate purpose 

and there was not "an overwhelming probability" that the 

 8 
jury would have been unable to follow the limiting 

instructions, or "a strong likelihood" that the evidence 

would be "devastating" to the defendants. United States v. 

Vaulin, 132 F.3d 898, 901 (3d Cir. 1997). In the 

circumstances, the court did not abuse its discretion in 

admitting it. 

B. Whether it was proper for the court to dismiss Jefferson 

 for sleeping without a voir dire of her. 

The defendants argue vigorously that the court erred in 

dismissing Jefferson. We review the court's actions in this 

regard for an abuse of discretion. See United States v. 

Bertoli, 40 F.3d 1384, 1392 (3d Cir. 1994). 

The court had a legitimate basis to dismiss Jefferson. 

Under Fed. R. Crim. P. 24(c), a court may dismiss jurors if 

they "become or are found to be unable or disqualified to 

perform their duties." The defendants argue that the court's 

stated reason for dismissing Jefferson, that she was 

sleeping, was only a "pretext," and that the court and the 

government had singled her out and were looking for ways 

to remove her. But the record shows that the court 

dismissed her for inability to serve as a juror, and that the 

court had sufficient information to support the dismissal 

and so did not have to voir dire her or the other jurors with 

respect to this point. See, e.g., United States v. Bertoli, 40 

F.3d at 1395; United States v. Reese, 33 F.3d 166, 173 (2d 

Cir. 1992). 

The defendants downplay the fact that the court itself 

noticed Jefferson sleeping: first, when it overheard someone 

snoring loudly during the government's summation, then, 

when it observed Jefferson snoring during the defendants' 

summation; thus, its dismissal was not solely based on its 

law clerk's observations. The court could take judicial 

notice of the conduct of a juror in open court. See, e.g., 

United States v. Carter, 433 F.2d 874, 876 (10th Cir. 1970). 

Moreover, the court did not base its decision on ex parte 

communications with its clerk. Rather, it put the clerk on 

the stand to be cross-examined. The defendants refused to 

question the clerk, and now argue that this is because they 

did not want to risk attacking the court through its 

extension, the clerk. Yet the defendants' attorneys were 

 9 
quite willing to argue with the court itself regarding its 

observation that Jefferson was sleeping, and were willing to 

question whether the court had observed other jurors 

sleeping as well. Furthermore, when the court initially 

offered to voir dire Jefferson the defendants objected to that 

procedure, stating that at that point she should not be 

singled out, and that there was no basis for the inquiry. 

After the summations, the situation changed. At that 

point the defendants argued that Jefferson should be 

examined, along with all other jurors, concerning her 

potentially prejudicial comment which Moldow overheard. 

The court offered to do so but after further discussion 

decided to dismiss Jefferson finding that there was no 

reason to question her based upon Moldow's testimony of 

April 16, 1999 because it was clear that Jefferson had not 

been attentive during the closings and should be dismissed 

on that basis. We find that the court's procedure was not 

an abuse of discretion. See United States v. Console, 13 

F.3d 641, 669 n.34 (3d Cir. 1993). 

C. Whether the court properly instructed the jury on the 

 Hobbs Act. 

The defendants challenge the court's instructions to the 

jury on the Hobbs Act Count 6 charge for extortion under 

color of official right, 18 U.S.C. SS 1951(a)(b)(2) and (3) and 

2. They argue that the court improperly refused to charge 

that in a non-campaign case like this one, an express 

agreement must be shown.1 We exercise plenary review on 

this issue. See Ryder v. Westinghouse Elec. Corp., 128 F.3d 

128, 135 (3d Cir. 1997); United States v. Zehrbach, 47 F.3d 

1252, 1260 (3d Cir. 1995). 

The court's instruction was as follows: 

 So if a public official agrees explicitly or implicitly to 

 take or withhold some action for the purpose of 

 obtaining money for someone else, that constitutes 

_________________________________________________________________ 

1. Campaign contribution cases present special problems because 

persons who hope that their interests will receive favorable treatment 

from elected officials legitimately may make campaign contributions to 

those officials. See McCormick v. United States, 500 U.S. 257, 272-73, 

111 S.Ct. 1807, 1816 (1991). 

 10 
 extortion. The public official need not fulfill the promise 

 of the payor to do or not to do an official act, although 

 the official's failure to influence may be considered 

 along with all of his conduct in determining whether or 

 not he possessed the intent to commit the crime. The 

 crime is completed at the time when the public official 

 knowingly accepts the benefit in return for his 

 agreement to perform or not to perform an act related 

 to his office. Moreover, the government does not have to 

 prove that there was an express promise on the part of 

 the public official to perform a particular act at the time 

 of the payment. 

 In sum then, it is sufficient if the public official 

 understands that he is expected, as a result of the 

 payment, to exercise particular kinds of influence or to 

 do certain things connected with his office as specific 

 opportunities arise. 

App. at 6269-70 (emphasis added). 

As the government argues, this instruction complies with 

the most recent Supreme Court holding on the issue of 

whether an agreement is required for conviction under the 

Hobbs Act. In Evans v. United States, 504 U.S. 255, 268, 

112 S.Ct. 1881, 1889 (1992), the Supreme Court held that 

"the [g]overnment need only show that a public official has 

obtained a payment to which he was not entitled, knowing 

that the payment was made in return for official acts," in 

order to establish extortion under color of official right 

under the Hobbs Act. Significantly, the Court "reject[ed] 

petitioner's contention that an affirmative step is an 

element of the offense of extortion `under color of official 

right' and need be included in the instruction." Id. 

Several courts of appeals also have turned to Justice 

Kennedy's concurrence in Evans to hold specifically that no 

explicit promise is required. In Evans, Justice Kennedy 

wrote that "[t]he official and the payor need not state the 

quid pro quo in express terms, for otherwise the law's effect 

could be frustrated by knowing winks and nods." Id. at 

274, 112 S.Ct. at 1892 (concurring opinion). The Court of 

Appeals for the Second Circuit, for example, drawing upon 

Justice Kennedy's concurrence, has held that, in non- 

 11 
campaign cases, "proof of an explicit promise to perform the 

official acts in return for the payment is not required." 

United States v. Delano, 55 F.3d 720, 731 (2d Cir. 1995); 

see also United States v. Hairston, 46 F.3d 361, 365 (4th 

Cir. 1995) (quid pro quo need not be express; government 

only must show that public official obtained payment to 

which he was not entitled knowing that payment was in 

return for official act). Here, the government proved the 

quid pro quo relationship, though it did not show and did 

not have to show that the defendants had an express

agreement. 

The defendants point to cases from the Court of Appeals 

for the Eleventh Circuit to support their position. Brief at 

36-37. In United States v. Martinez, 14 F.3d 543, 552-54 

(11th Cir. 1994), the court of appeals held that the district 

court had failed to instruct the jury on the quid pro quo 

relationship, which it construed to mean "explicit promise." 

Yet it noted that in Evans the Supreme Court, in discussing 

an earlier Hobbs Act case, stated that the jury instruction 

satisfied "the quid pro quo requirement of McCormick 

because the offense is completed at the time when the 

public official receives a payment in return for his 

agreement to perform specific official acts[.]" Martinez, 14 

F.3d at 553 (quoting Evans, 504 U.S. at 268, 112 S.Ct. at 

1889). In McCormick, "proof of a quid pro quo" is defined as 

a "promise of official action or inaction in exchange for any 

payment or property received." McCormick v. United States, 

500 U.S. 257, 266, 111 S.Ct. 1807, 1813 (1991). The Court 

did not in McCormick, or later in Evans, require an

"express" or "explicit" promise in cases such as this 

involving payments outside of a campaign contribution 

context. Nevertheless, in United States v. Davis, 30 F.3d 

108, 109 (11th Cir. 1994), the court of appeals adhered to 

Martinez. 

We will not follow the Court of Appeals for the Eleventh 

Circuit as in our view, as Justice Kennedy explained, a 

conclusion that in a Hobbs Act case the government has to 

demonstrate that the public official made an express 

promise to perform a particular act and that "knowing 

winks and nods" are not sufficient would frustrate the act's 

effect. Evans, 504 U.S. at 274, 112 S.Ct. at 1892 (Kennedy, 

 12 
J., concurring). In the circumstances, we conclude that the 

court's instruction was correct. 

D. Defendants' other arguments. 

The defendants raise the following additional arguments: 

 (1) The district court's erroneous interpretation of the 

 Wire and Mail Fraud Act and improper jury charge 

 violated defendants' federal constitutional rights to due 

 process and to a fair trial; 

 (2) The district court's erroneous interpretation of the 

 New Jersey gratuity law and the improper fashioning of 

 a jury charge based upon an incorrect legal analysis 

 violated defendants' federal constitutional right to due 

 process and to a fair trial; 

 (3) In violation of defendant Mattison's federal 

 constitutional right to due process and to a fair trial, 

 the district court erred in failing to sever the case 

 against defendant Mattison from the case against 

 defendant Bradley; 

 (4) Defendant Mattison's federal, constitutional r ights 

 to due process and to a fair trial and the rights of 

 defendant Mattison under the Federal Sentencing 

 Guidelines were violated by the district court's failure 

 to grant him a downward departure at the time of 

 sentencing; 

 (5) Defendant Mattison's federal constitutional right to 

 due process and to a fair trial and the rights of 

 defendant Mattison under the Federal Sentencing 

 Guidelines were violated by the imposition of a two- 

 point increase under an alleged multiple bribe theory; 

 (6) Federal constitutional rights to due process a nd to 

 a fair trial were violated by the district court's failure to 

 grant defendants' motion for judgment of acquittal and 

 motion for a new trial. 

We have reviewed these contentions and conclude that they 

are clearly without merit and thus we reject the contentions 

without further discussion. 

 13 
III. CONCLUSION 

For the foregoing reasons we will affirm the judgments of 

conviction and sentence entered July 16, 1997. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 14