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. e du/thir dc ir c uit_1999/103Filed 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 Uni ted States Court of Appeals for the Federal Circuit, sitting by designa tion.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

2convictions for certain offenses in the district co urt 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 M ayor of the City of Newark, from approximately 1987 thro ugh early 1996, and was also a New Jersey State Assembl yman during that period. As Chief of Staff, Mattison act ed as the Mayor's liaison between the City's Business Adminis trator and its department heads, ran the Mayor's office an d 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 lobbyi st 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 account s in Williams' name in trust for their daughter. During the course of the investigation in this case the FBI se ized $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 consultan t in the late 1980s, running a business called Bradley F inancial Services from an office in Milburn, New Jersey. Bra dley had known Williams, through Mattison, for about 15 year s at
the time of trial. The evidence at the trial demons trated 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 Ci ty and the Newark Board of Education. The City chose Great West as a provider of deferred compensation plans for Ci ty employees, and the Board of Education chose Corroon to provide insurance with Bradley as its minority

subcontractor.

There was evidence that Mattison provided Bradley w ith official favors with respect to those contracts in return for a series of corrupt payments from Bradley. In parti cular, 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 fir st into

3his personal bank account and cashed the second. Br adley

made three checks payable to Williams for Mattison' s direct and indirect benefit. The checks were for $3,600, d ated October 8, 1991, $3,600, dated November 13, 1992, a nd $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 c ash on February 5, 1992. She deposited the second check in to her personal checking account, and paid certain of Matt ison's bills with it. She deposited the third check into h er 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 Bradle y claimed that the first check he wrote to Mattison w as a repayment of a loan.

The government demonstrated that Mattison referred Bradley to Great West when it was seeking the contr act to provide the City's deferred compensation plan. Brad ley, 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 competit or did not offer a competing deferred compensation plan to the City.

The evidence showed that the Newark Board of Educat ion was selecting an insurance plan in 1989-90 to cover its buildings and other property. Under applicable rule s, Corroon was required to have a minority contractor participating with it and Mattison vouched for Brad ley 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 address ed to Mattison, some confidential, pertaining to the Boar d of
Education contract. After Corroon secured the contr act in

41990, Bradley was unable to obtain minority certifi cation

and lacked malpractice insurance necessary for him to comply with the contract. Nevertheless, through Mat tison's intervention, Corroon decided to pay Bradley his commission in September 1991, despite initially sto pping payment on a check to him.

Bradley and Williams testified that the various mon ey transfers related to loans, but the government argu ed 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 t hem. 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 borro wed money for that purpose from a woman he was dating. While Bradley stated that he wrote "consulting" on that c heck so he could deduct it from taxes, he had not filed tax returns since 1989, leading to the tax evasion conviction i n the case. Moreover, Bradley was in financial difficulti es 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 b usiness, the business was not in serious trouble, and she ha d funds available to her from a City program and in her own accounts. Also, in 1993 when Bradley sought a minor ity
business certification he did not indicate that he had loans
receivable as assets.

A grand jury returned a 26-count superseding indict ment against Mattison and Bradley. It charged both in co unts one through 19 with: conspiracy to accept corrupt payments; accepting money to influence and reward; a scheme to extort money under official right, violat ing the Hobbs Act; use of a facility in interstate commerce to accept a benefit not allowed by law to influence the perfo rmance of Mattison's duties contrary to New Jersey law; and u se of mail and wire fraud to deprive the citizens of Newa rk and New Jersey of their right to honest services of a p ublic official. It charged Bradley separately in seven co unts for three offenses: making a false declaration before t he grand jury; false use of a social security number; and ta x evasion

from 1989-1993.

5The court dismissed three jurors during and after t he

summations at the trial. The court dismissed the fi rst, Moldow, to attend a family funeral. The court dismi ssed 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 mentio ned that Jefferson had an odor problem and the court moved h er 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 concerni ng Jefferson. When near the end of the trial Moldow br ought her request to leave the jury to the court, she ask ed if the
court would dismiss the other alternates. At that t ime the court asked her if there was something she wanted t o 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 c ourt
also asked if the odor issue continued. The court t old the parties about the situation, and the court placed M oldow under oath for questioning.

Moldow stated that near the start of trial, she had overheard Jefferson during lunch mutter a comment a bout making up her own mind and not listening to the cou rt.
Moldow said the remark shocked her and that she ask ed Jefferson what she had said, but that Jefferson den ied 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 Jefferso n, but the defendants opposed that procedure. The court then d ecided to delay questioning her in recognition of her stat us as an alternate.

Ultimately the court dismissed the juror who had vacation plans. The court then stated that it had o bserved that Jefferson was not paying attention during the

6defendants' summation. The defendants at that time

changed their position, and urged the court to exam ine Jefferson. The court offered to voir dire all juror s about the comment Moldow overheard, but it did not do so. Aft er further discussion, the court dismissed Jefferson w ithout questioning her. We understand that if the court ha d not
excused Jefferson she would have deliberated in thi s case. Eventually the jury convicted both defendants on al l

counts.

The court calculated Mattison's guidelines range at 33-41 months, and it sentenced him to 41 months imprisonm ent on each count to run concurrently, three years' sup ervised release on each count, also to run concurrently, 40 0 hours of community service, a fine of $25,000, and specia l assessment of $950.

Bradley's guidelines range was 46-57 months, and th e court sentenced him to concurrent 46-month custodia l terms on each count, to three-year terms of concurr ent 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 B radley has joined. The defendants argue that evidence of t he $157,000 recovered from Williams was "highly inflammatory" and "unfairly prejudicial" and that t he 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 M attison, the evidence "powerfully suggested" that Mattison h ad something to do with it, as it was found in William s' home.
Id. at 23.

The government called Williams as a witness followi ng a grant of immunity to her. Testimony demonstrated th at the FBI had found the $157,000 in cash in lockboxes in the

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

in connection with the investigation against Mattis on and Bradley. Williams claimed that she had found the mo ney in her father's house a year after his death, on appro ximately October 24, 1995, and that she had not put the mone y in a bank because she was waiting to discuss the matte r with a sister. The government stated that the evidence w as admissible to impeach Williams' testimony that she had lent money she obtained from Bradley's first loan t o her, in 1991, for $3,600, to her father. In this regard, th e government suggested that if her father had had so much money, he would not have borrowed from Williams. Th e government also contended that evidence of the mone y impeached her testimony that Bradley's three paymen ts 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 tes timony that she withdrew $3,500 in cash in February 1992 f or her father was false, and had to be changed at trial wh ere 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 eviden ce with respect to the $157,000 was admitted only to impeac h Williams, and that the prosecution did not suggest that there was a connection between the cash, the defend ants, and any crime.

The court's decision to admit the evidence was prop er. See Carter v. Hewitt, 617 F.2d 973, 972 (3d Cir. 19 80) ("prejudice" entails a determination on "an imprope r basis of decision"). In making a Fed. R. Evid. 403 determ ination, the district court is required to balance the proba tive value of evidence against its prejudicial effect. The dis trict court "must appraise the genuine need for the challenged evidence and balance that necessity against the ris k of prejudice to the defendant." Government of the Virg in Islands v. Archibald, 987 F.2d 180, 186 (3d Cir. 19 93) (internal quotation marks and citations omitted). H ere evidence regarding the $157,000 had a legitimate pu rpose and there was not "an overwhelming probability" tha t the

8jury would have been unable to follow the limiting

instructions, or "a strong likelihood" that the evi dence would be "devastating" to the defendants. United St ates v. Vaulin, 132 F.3d 898, 901 (3d Cir. 1997). In the circumstances, the court did not abuse its discreti on in admitting it.

B. Whether it was proper for the court to dismiss J efferson for sleeping without a voir dire of her.

The defendants argue vigorously that the court erre d in dismissing Jefferson. We review the court's actions in this regard for an abuse of discretion. See United State s v. Bertoli, 40 F.3d 1384, 1392 (3d Cir. 1994).

The court had a legitimate basis to dismiss Jeffers on. Under Fed. R. Crim. P. 24(c), a court may dismiss j urors if they "become or are found to be unable or disqualif ied to perform their duties." The defendants argue that th e court's stated reason for dismissing Jefferson, that she wa s 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, an d that the court had sufficient information to support the dis missal and so did not have to voir dire her or the other j urors 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 its elf noticed Jefferson sleeping: first, when it overhear d someone snoring loudly during the government's summation, t hen, when it observed Jefferson snoring during the defen dants' summation; thus, its dismissal was not solely based on its law clerk's observations. The court could take judi cial notice of the conduct of a juror in open court. See , e.g., United States v. Carter, 433 F.2d 874, 876 (10th Ci r. 1970). Moreover, the court did not base its decision on ex parte communications with its clerk. Rather, it put the c lerk on
the stand to be cross-examined. The defendants refu sed to question the clerk, and now argue that this is beca use they did not want to risk attacking the court through it s extension, the clerk. Yet the defendants' attorneys were

9quite willing to argue with the court itself regard ing its

observation that Jefferson was sleeping, and were w illing to question whether the court had observed other juror s sleeping as well. Furthermore, when the court initi ally offered to voir dire Jefferson the defendants objec ted to that procedure, stating that at that point she should no t be singled out, and that there was no basis for the in quiry.

After the summations, the situation changed. At tha t point the defendants argued that Jefferson should b e examined, along with all other jurors, concerning h er potentially prejudicial comment which Moldow overhe ard.
The court offered to do so but after further discus sion decided to dismiss Jefferson finding that there was no reason to question her based upon Moldow's testimon y of April 16, 1999 because it was clear that Jefferson had not been attentive during the closings and should be di smissed on that basis. We find that the court's procedure w as not
an abuse of discretion. See United States v. Consol e, 13 F.3d 641, 669 n.34 (3d Cir. 1993).

C. Whether the court properly instructed the jury o n the

Hobbs Act.

The defendants challenge the court's instructions t o 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 expre ss agreement must be shown.1 We exercise plenary revie w 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 o r implicitly to take or withhold some action for the purpose of obtaining money for someone else, that const itutes

___________________________________________________ ______________

1. Campaign contribution cases present special prob lems because persons who hope that their interests will receive favorable treatment from elected officials legitimately may make campai gn contributions to those officials. See McCormick v. United States, 50 0 U.S. 257, 272-73, 111 S.Ct. 1807, 1816 (1991).

10extortion. The public official need not fulf ill the promise

of the payor to do or not to do an official act, although the official's failure to influence may be c onsidered along with all of his conduct in determining whether or not he possessed the intent to commit the cr ime. The crime is completed at the time when the publ ic official knowingly accepts the benefit in return for his agreement to perform or not to perform an ac t related to his office. Moreover, the government does not have to prove that there was an express promise on t he 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 inf luence 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 und er 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 offi cial has obtained a payment to which he was not entitled, kn owing that the payment was made in return for official ac ts," in
order to establish extortion under color of officia l right under the Hobbs Act. Significantly, the Court "reje ct[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 Justi ce Kennedy's concurrence in Evans to hold specifically that no explicit promise is required. In Evans, Justice Ken nedy wrote that "[t]he official and the payor need not s tate the quid pro quo in express terms, for otherwise the la w's effect could be frustrated by knowing winks and nods." Id. at 274, 112 S.Ct. at 1892 (concurring opinion). The Co urt of Appeals for the Second Circuit, for example, drawin g upon Justice Kennedy's concurrence, has held that, in no n-

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

official acts in return for the payment is not requ ired." United States v. Delano, 55 F.3d 720, 731 (2d Cir. 1995); see also United States v. Hairston, 46 F.3d 361, 36 5 (4th Cir. 1995) (quid pro quo need not be express; gover nment only must show that public official obtained paymen t to which he was not entitled knowing that payment was in return for official act). Here, the government prov ed the quid pro quo relationship, though it did not show a nd did not have to show that the defendants had an express agreement.

The defendants point to cases from the Court of App eals for the Eleventh Circuit to support their position. Brief at 36-37. In United States v. Martinez, 14 F.3d 543, 5 52-54 (11th Cir. 1994), the court of appeals held that th e district court had failed to instruct the jury on the quid p ro quo relationship, which it construed to mean "explicit promise." Yet it noted that in Evans the Supreme Court, in di scussing an earlier Hobbs Act case, stated that the jury ins truction satisfied "the quid pro quo requirement of McCormic k because the offense is completed at the time when t he public official receives a payment in return for hi s agreement to perform specific official acts[.]" Mar tinez, 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 d efined as a "promise of official action or inaction in exchan ge 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 th is involving payments outside of a campaign contributi on context. Nevertheless, in United States v. Davis, 3 0 F.3d 108, 109 (11th Cir. 1994), the court of appeals adh ered to
Martinez.

We will not follow the Court of Appeals for the Ele venth Circuit as in our view, as Justice Kennedy explaine d, a conclusion that in a Hobbs Act case the government has to demonstrate that the public official made an expres s promise to perform a particular act and that "knowi ng winks and nods" are not sufficient would frustrate the act's effect. Evans, 504 U.S. at 274, 112 S.Ct. at 1892 ( Kennedy,

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

court's instruction was correct.

D. Defendants' other arguments.

The defendants raise the following additional argum ents:

(1) The district court's erroneous interpret ation of the Wire and Mail Fraud Act and improper jury ch arge violated defendants' federal constitutional rights to due process and to a fair trial;

(2) The district court's erroneous interpret ation of the New Jersey gratuity law and the improper fas hioning 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 fed eral 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 aga inst defendant Bradley;

(4) Defendant Mattison's federal, constituti onal r ights to due process and to a fair trial and the r ights of
defendant Mattison under the Federal Sentenc ing Guidelines were violated by the district cou rt's failure to grant him a downward departure at the tim e of sentencing;

(5) Defendant Mattison's federal constitutio nal right to due process and to a fair trial and the righ ts of
defendant Mattison under the Federal Sentenc ing Guidelines were violated by the imposition o f a two- point increase under an alleged multiple bri be theory;

(6) Federal constitutional rights to due pro cess a nd to a fair trial were violated by the district c ourt's failure to grant defendants' motion for judgment of acq uittal and
motion for a new trial.

We have reviewed these contentions and conclude tha t they are clearly without merit and thus we reject the co ntentions
without further discussion.

13III. CONCLUSION

For the foregoing reasons we will affirm the judgme nts of conviction and sentence entered July 16, 1997.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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